Chambers’ Rules and Pretrial Orders; Law Clerk Hiring Procedures; Order on Civil Motion Practice; Sentencing Hearing Order; Sentencing Worksheet; Change of Plea Colloquy; Judge Hornak's Hints for Potential Jurors; Judge Hornak's Trial Procedures; Statement Regarding Courtroom Opportunities for Newer

=== Chambers’ Rules and Pretrial Orders ===

P R A C T I C E S A N D P R O C E D U R E S O F J U D G E M A R K R . H O R N A K I. GENERAL MATTERS D e c e m b e r , 2 0 1 6 A. B. C. D. E. Communications with the Court Communication with the Court should be in the form of motions (rather than letters to Chambers), accompanied by a proposed order specifying the relief requested. In an emergency situation, or in situations involving agreed-upon requests for a short extension of a filing deadline, counsel should telephone Chambers. The Court should not be copied on correspondence between counsel. It is the Court’s practice to post on the ECF docket any case-related correspondence that it receives. Communications with Law Clerks and Other Staff Communications with law clerks and the Courtroom Deputy Clerk concerning the administration, not the merits, of a case, or to request a status conference, are permissible and encouraged. Such inquiries include those pertaining to the status of any pending matter. Counsel must state that any communication is with the knowledge and concurrence of all parties. Filing and Service on CM/ECF Counsel (not the Court) is responsible for the filing of all pleadings, documents or any other material provided to the Court and/or the Clerk and for service upon opposing counsel or pro se parties. The Court is not responsible for filing and/or service of pleadings, documents or any other material of the parties. All filings must be made on the District’s CM/ECF electronic filing system, unless otherwise permitted or directed by the Local Rules of Court. For guidelines and information on CM/ECF, and how to become a registered user of the system, please refer to www.pawd.uscourts.gov and click on the CM/ECF Electronic Filing tab (on bottom left side of webpage). The Court may require any pro se litigant to become a registered CM/ECF user. ADR The Court follows the ADR Policies and Procedures available on the Court’s website (www.pawd.uscourts.gov). For cause shown specific to a given case, the Court will adjust the ADR timeline and procedures to “fit” the specific case. Objections/Placing Proceedings on the Record If counsel at any time has an objection to any procedure, ruling or other action of the Court, counsel should make an immediate objection by written motion or otherwise on the record at the earliest practicable time. If no court reporter is present and counsel has an objection(s), or otherwise desires the proceeding be on the record for any reason, counsel has the right to and should request a court reporter to be present and thereafter place the objection(s) or proceedings on the F. G. H. I. J. record. Counsel may request at any time that any proceeding or matter be placed on the record. ECF filings and Court proceedings will not be “sealed” except by Order of the Court for good cause shown in conformity with applicable law. See Section II(I), below. Telephone Conferences Requests for attorneys and parties to participate in conferences by telephone (including to resolve case management problems) will be permitted, and are usually the norm. However, unless otherwise ordered by the Court, settlement conferences, final pretrial conferences and oral arguments will not ordinarily be conducted by telephone. For specifically noticed settlement conferences, both lead trial counsel and parties are expected to appear in person, along with any insurance representative. This Court will schedule and conduct a status conference (telephonic or in person) at anytime if requested by counsel for the parties. Counsel should confer on their agenda, and contact the Court to set it up. When a telephone conference is requested, counsel shall provide the Court with direct contact phone numbers by 4:00 p.m. the day before the conference, and coordinate arrangements in consultation with Chambers. If no contact is made, the Court will use the number listed on the docket. Counsel must make sure that their contact information is kept current on the docket. The Court may direct the use of its AT&T conference number. Pro Hac Vice Admissions Motions for pro hac vice admissions should be done by filing a brief written motion consistent with the Local Rules. The motion should include what court(s) the requesting attorney is admitted to, that they are in good standing in all courts, and a certification indicating they are a registered user of the Western District CM/ECF System. Comments to the Media Counsel are expected to adhere to the Rules of Professional Conduct in all dealings, including their dealings with the media as they relate to any a pending matter. Amendment of these Practices and Procedures The Court’s Practices and Procedures are available online and will be updated periodically. Counsel is responsible for keeping aware of any such changes. Consultation by Counsel/Attendance of Necessary Counsel All counsel are expected to confer with one another, in person or by telephone (not email), prior to any conference with the Court to review any issue which may be raised by counsel at such conference and to provide to one another their respective positions (and factual/legal authority) on all such matters. No counsel should be surprised at any conference by the position taken by any opposing party or the legal or factual basis for that position. All parties (other than those proceeding pro se) shall be represented at any conference by counsel who is a 2 member of the Bar of this Court (or who has been or will be admitted specially), has entered an appearance, and is sufficiently familiar with all legal and factual matters involved in the action (and has reviewed them with their client) so as to allow counsel to enter into appropriate stipulations and to meaningfully and fully participate in the proceedings. Ordinarily, this means lead trial counsel. At any conference, counsel shall be prepared to discuss in detail and argue any pending motions, and to discuss settlement. II. MOTIONS PRACTICE A. B. C. D. Oral Argument The Court will often schedule oral argument for any pending motion which, if granted, would dispose of a claim or defense in whole or in part, any motion for sanctions, any motion for disqualification of counsel, and any successive motion for modification of the pretrial schedule. Requests by any party for oral argument of any matter will be considered on a case-by-case basis. The Court often rules on the record at the conclusion of oral arguments. Briefs See attached Order on Motions Practice. Chamber Copies of Motion Papers See attached Order and Procedures on Motions Practice. Responses to Motions – Scheduling See attached Order and Procedures on Motions Practice. E. Magistrate Judges’ Reports and Recommendations Reports and Recommendations to which objections have been filed will usually not be decided until a response is filed by the non-objecting party (or opposite party if both object), unless no objections are filed in a timely manner, or the Court concludes that the objections are without merit. Briefs in support of or in response to Objections not in excess of fifteen (15) pages are permitted. If no Objections have been timely filed, a decision will be made solely on the basis of the Report and Recommendation and the previously filed briefs. F. Evidentiary Hearings Hearings necessitated by pretrial or other motions will be held as ordered by the Court. Any party whose motion relies in any part on a contested factual issue should be prepared to offer evidence at any hearing or argument on the motion. G. Motions In Limine/Motions Deadlines for filing motions in limine and Daubert motions, with their respective supporting briefs and proposed orders of court, will be set forth in the pretrial or post-discovery scheduling orders. Unless there is a good reason not to do so, motions in limine will be ruled upon in advance of trial and usually at the pretrial conference. 3 H. Motions For Leave to Amended Pleadings Parties should comply with Third Circuit precedent and attach a copy of the draft amended pleading to any motion to amend (showing proposed changes in “redline" format), and the motions should state the position of all other parties to the motion. Counsel shall also set forth why such amendment is supported by new law or newly discovered facts. I. Motions to Seal All motions to seal any document or proceeding must set forth the specific factual and legal basis and necessity for sealing under prevailing law. Any Order sealing any matter is subject to being vacated upon the motions of any party, any interested person, or by the Court on its own motion. Absent exceptional circumstances, any proposed Order must include this language: “This Order may be vacated and sealing lifted for cause shown upon the motion of any party or other person with a recognized interest, or after due notice by the Court upon the Court’s own motion.” The parties are reminded that all proceedings in federal court are presumptively open to the public, including those in which “sealed” material may be discussed. III. CIVIL CASES A. Pretrial Procedures 1. 2. Local Rule 16.1 The Court utilizes a standard form case management order based on L.R. 16.1. Other than the requirements of L.R. 16.1, no additional items are included in the order. The standard form Case Management Order is attached. Initial Case Management Conference An initial case management conference is ordinarily scheduled within thirty (30) days of the filing of a responsive pleading or motion under Fed.R.Civ.P. 12, if not sooner. Lead trial counsel are required to participate in the conference and shall obtain full settlement authority prior to the conference. Party and insurance claims representatives shall be available by telephone for the duration of the conference. The Court will ordinarily conduct this conference by telephone if requested by any counsel (or on its own directive), especially where doing so saves time and money. After the initial case management conference, the Case Management Order is issued after discussion with lead trial counsel at the initial conference as to the length of time necessary for discovery, handling of expert witnesses and other matters. Settlement and ADR options also will be discussed. Ordinarily, fact discovery will extend for 150 days, absent unusual circumstances. 4 Additional conferences may take place on request of counsel or at the direction of the Court and in all cases prior to the trial date to discuss pretrial matters, settlement and/or trial. Trial counsel are encouraged to request the assistance of the Court on any matter. Conferences to handle routine matters are most often conducted by telephone. 3. Settlement Conferences The Court entertains requests for settlement conferences, and/or sets them at its own discretion. Unless otherwise ordered, at least five (5) working days prior to the conference, the parties should submit brief letters to the Court detailing the relative strengths and weaknesses of their case, as well as settlement positions. The letters will not be filed nor disclosed to opposing counsel. The Court rarely holds such conferences in non-jury casestrials, even with the consent of all parties. Lead trial counsel and the client representative(s) with full settlement authority shall attend all settlement conferences, in person. In cases where there is insurance coverage (or the possibility of insurance coverage (even if there is a coverage dispute or reservation of rights), a representative(s) from the insurance carrier(s) shall attend the settlement conference. Carrier and client representative(s) must have full and unilateral settlement authority on behalf of the carrier(s) to the full extent of the insurance policy(ies). "Full settlement authority" means that all persons necessary to make any settlement proposal or decision, or to accept or reject any settlement offer or demand, are in actual, physical attendance. The Court routinely requires the exchange of updated/current settlement demands/offers immediately prior to the settlement conference. Consistent with the initial status conference procedure, at any settlement conference counsel shall be prepared to discuss and agree to ADR options, including follow-up ADR proceedings. At all settlement conferences, trial counsel shall be prepared to discuss any anticipated dispositive motions as well as counsels’ assessment of the amount of time necessary to try the case. No participant may leave the conference unless and until excused by the Court. 4. Extensions and Continuances The Court will grant extensions for the filing of motions or briefs where good cause is shown for doing so. Requests for extensions of the discovery period will routinely be granted (at least as to the first such request) so long as the motion sets forth the specific discovery conducted to date and the specific discovery which will be conducted during the extension. Requests for extensions should be made by a short written motion (accompanied by a proposed order), and the motion must include a statement regarding all opposing counsel’s position on an extension and a list of any prior requests for extensions. All such requests should be made at least five (5) business 5 days in advance of the existing deadline. Parties opposing short extensions must be prepared to articulate the actual prejudice which would occur if the extension were granted. Specific restrictions may be placed on further extensions when the case is not moving. Extension for dates regarding appearances before the Court, conferences, or oral arguments will be granted when the Court is given sufficient notice so as to not complicate the Court’s calendar or prejudice other parties. The Court will do just about anything reasonable to accommodate trial counsel’s family vacation/special event needs, if given plenty of advance notice. B. Discovery Matters 1. 2. 3. 4. 5. Length of Discovery Period and Extensions Generally 150 days is permitted for discovery, unless the parties indicate that a different time frame is appropriate and the Court approves that time frame. Extensions of time for discovery are permitted for good cause shown, provided that the case has been advanced by counsel during the initial period of discovery. The Court will, upon the request of the parties or its own motion, consider phased discovery in appropriate cases. Expert Witnesses Discovery depositions and depositions for use at trial of expert witnesses are nearly always permitted. Expert witness discovery is reciprocal, and the Court encourages the use of video deposition testimony. Deposition/Discovery Disputes For discovery disputes that arise during a deposition, the attorneys together may contact the Court by telephone to determine whether the Court wishes to resolve the matter at that time. Counsel must contact the Court to set a discovery conference before filing any motion to compel or for sanctions, or for a non-consensual protective order. Failure to do so may result in the deferral of a ruling, or denial of such motion. Stay of Discovery The filing of a dispositive motion does not automatically stay discovery. A stay may be sought by motion but will ordinarily be granted only for good cause shown. In some cases, discovery may be limited to those facts in support of or opposition to the dispositive motion (e.g., a motion to dismiss for lack of personal jurisdiction). Limitations on Discovery No standard restrictions on the number of interrogatories or length of depositions are employed beyond those set forth in the Federal Rules of 6 Civil Procedure. However, the parties are expected to use their common sense and discretion in discovery matters, and the Court will entertain motions when the request propounded or response is unreasonable. 6. Rule 11 & Rule 37 Motions/Sanctions The Court expects counsel to avoid the necessity of filing Rule 11 and/or Rule 37 motions through the exercise of good professional judgment, common courtesy and civility. However, counsel fees and costs may be awarded in appropriate circumstances. Oral argument is ordinarily scheduled as to all sanctions motions. C. Injunctions and Temporary Restraining Orders Where a party seeks an injunction and/or a temporary restraining order situation, the moving party must establish and demonstrate that serious efforts were made to contact the opposing party or its counsel prior to seeking relief, which must be supported by filing an F. R. Civ. P. 65 affidavit regarding the same. Otherwise, the Court will not hold a hearing on the matter or issue a temporary restraining order. In circumstances where a bond or deposit of security may be required if relief is granted, the moving party is expected to have that arranged at the time the motion is filed. The papers in support of a motion for a temporary restraining order or preliminary injunction should include affidavit(s) in support of the motion with all relevant documents attached to the affidavit(s). Any response to the motion for temporary restraining order or preliminary injunction should be accompanied by affidavits(s). Both motions and responses must attach proposed findings of fact and conclusions of law. All requests for injunctions and temporary restraining orders are handled as expeditiously as possible and the Court will, in its discretion and after review of the pleadings and affidavit(s), determine whether or not to conduct a hearing and, if so, the scope of the testimony necessary to resolve the matter. Counsel filing any such motion should be immediately prepared to proceed with argument, and testimony from supporting witnesses. D. Patent Cases All patent cases will follow the Western District of Pennsylvania’s Local Rules of Practice for Patent Cases. E. Trial/Hearing Courtroom Procedures (all cases) 1. Scheduling of Cases At the initial case management conference, a presumptive date for trial generally will be discussed. Vacation schedules, family schedule conflicts, and personal and professional schedule conflicts of trial counsel 7 2. 3. 4. 5. are ordinarily accommodated when counsel has notified the Court of any such conflict as soon as the conflict becomes known. Final Pretrial Conference At the final pretrial conference, witness lists, exhibits, motions in limine, jury instructions, voir dire, verdict slips, and any other pretrial matters will be discussed in detail, and generally ruled upon at the conference. As such, counsel should be prepared to make all related arguments at that time. The Court will usually permit/direct the deposition of necessary experts or unavailable witnesses for use at trial. In addition, at the pretrial conference in cases where it is appropriate, the Court may inform the parties of the amount of time each party will be allotted to present testimony and evidence at trial. Unless excused by the Court, all participating trial counsel, the principal client representative/client in civil matters, and the responsible insurance representative (all with full settlement authority) must attend the final pretrial conference in person. Trial Hours/Days Except as is otherwise necessary to accommodate jurors, the Court is in trial Monday through Friday, 9:00 a.m. to 4:30 p.m. with breaks when appropriate, unless the jury requests a different schedule. On trial days, counsel must be available at 8:30 a.m. (or earlier if necessary to ensure that trial commences on time) to meet with the Court concerning scheduling, anticipated trial issues, and to obtain advance rulings on evidentiary or other issues. The Court usually takes 15 minute breaks in both the morning and afternoon, and a 75 minute lunch break. Trial Briefs Trial briefs are appreciated. There are no filing date restrictions, but the briefs are more useful and more likely to be given serious consideration if filed at least seven (7) days before trial. Trial briefs should not exceed fifteen (15) pages. In bench trials, counsel will be required to submit proposed findings of fact and conclusions of law. Voir Dire The Court conducts voir dire in civil and criminal cases, and may permit a short introductory statement by counsel for each party to the venire panel. The Court often selects the jury on the Wednesday of the week prior to trial. Unless otherwise ordered by pretrial order, counsel are permitted to supplement the standard voir dire questions. Counsel shall attempt to obtain consent of opposing counsel prior to submission of any such 8 6. 7. 8. 9. 10. supplemental voir dire. Those supplemental voir dire questions to which counsel have agreed upon shall so state. If counsel behaves, the Court will usually allow counsel to ask follow-up questions during individual voir dire questioning. Note Taking and Questions by Jurors Jurors are permitted to take notes and are provided with notebook paper to do so. The Court is open to requests from counsel to allow jurors to be permitted to submit questions in writing to the Court, which will be reviewed by the Court and counsel before being propounded to the witness. Side Bars Counsel should be considerate of the use of jurors’ time. Consequently, except where essential to avoid prejudice to the trial process, side bars are generally disfavored because they disrupt the presentation of evidence, can waste the jury’s time and unduly extend the length of the trial. Counsel will meet with the Court each day at 8:30 a.m. (or earlier if necessary to ensure that trial commences on time) to raise points of evidence or other issues that would otherwise necessitate a side bar conference. Examination of Witnesses Out of Sequence Where appropriate, witnesses may be examined out of sequence upon request of a party. Witnesses may be examined in any order to which counsel agrees. For example, counsel could agree that expert witnesses for each side will testify in succession. The Court prefers that all testimony from a witness be drawn out in one sitting, as opposed to a witness being recalled. Opening and Closing Statements Ordinarily, up to thirty (30) minutes is allotted to each side for opening and for closing statements, depending on the complexity of the case. It is the Court's belief that shorter is most often better. Counsel may use exhibits or demonstratives if agreed to by all parties, or authorized by the Court, in advance. Time Limits for Examination of Witnesses Ordinarily, the Court will not set fixed time limits for the examination of witnesses or presentation of a party’s case. However, where appropriate, the Court may set time limits for the examination of witnesses and admission of evidence during trial. Such time limits include each party’s time spent on both direct and cross examinations. However, any time limit imposed does not include opening statements or closing arguments. In such situations, the Court will keep track of each party’s use of time during the trial. 9 11. 12. 13. 14. 15. Examination of Witnesses or Argument by More Than One Attorney Except in unusual circumstances with advance leave of Court, co-counsel are not permitted to split the examination of a witness. However, the Court will consider relaxing this rule if dual examinations/argument will facilitate a newer lawyer actively participating in trial, is not prejudicial to the opposing party, will not unduly prolong the proceedings, and does not result in intentional “double dipping.” Examination of Witnesses Beyond Direct and Cross Re-direct (and often re-cross) examination is usually ordinarily permitted; further examination is not permitted without leave of Court. Videotaped Testimony The Court has no special procedures regarding videotaped testimony except those set out in the Local Rules. Reading of Material into the Record Counsel can devise their own methodology for reading material (including stipulations) into the record, provided opposing counsel agrees. setting columns) Exhibits By a date set forth in the Pretrial Order, counsel shall file on CM/ECF a all (with Joint Exhibit List Chart government/plaintiff and defendant trial exhibits, by exhibit number/letter, date, author, type of document, objection as to authenticity (if any) with response, and objection as to admissibility with response. In addition, a copy of each exhibit shall be delivered to Chambers in a binder. The actual copy of the exhibits should not be filed on CM/ECF, only the Joint Exhibit List Chart shall be filed on CM/ECF. The hand-delivered Joint Exhibit List Chart with a copy of the exhibits in a standard black presentation, 3-ring binder(s) (not larger than three (3) inches) shall be delivered to Chambers by the date set forth in the Pretrial Order. forth One paper copy of each exhibit displayed during trial is to be provided to the Courtroom Deputy Clerk on the same day of its display. In order for the Jurors’ Exhibit Binders to be complete when deliberations begin, counsel must insure that a copy of each exhibit displayed and admitted has been provided to Court by the last day of trial. Counsel must provide the Courtroom Deputy Clerk with a binder(s) that will hold the paper copies of the exhibits to be submitted to the jury at the close of trial, and this will constitute the original record for purposes of appeal, if any. Voluminous data must be presented by summary exhibits pursuant to Fed. R. Evid. 1006, and voluminous exhibits shall be redacted to eliminate irrelevant material which shall remain available for examination by opposing counsel. Where copies of documents are offered, the originals shall be available for examination, unless waived by stipulation. All 10 exhibits will be presented using the Court’s electronic presentation system. All trial counsel must know how to use it. Counsel are not to take time during trial to exchange exhibits with each other as this will have been accomplished pretrial. With advance notice to all parties and approval of the Court, visual aids and exhibits may be used during opening statements. Exhibits need not be offered into evidence in numeric/alphabetical order. Plaintiffs use numbers, defendants use letters. 16. Juror Notebooks The Court will provide juror notebooks. The notes will be retained by the Courtroom Deputy Clerk during trial and deliberations and will be destroyed once a verdict has been rendered. 17. Motions for Judgment As a Matter of Law The Court’s only requirements for such motions are set forth in the applicable Federal Rules of Civil Procedure. 18. Jury Instructions The parties shall meet to agree on joint proposed jury instructions. After meeting, the parties together shall file one combined set of proposed instructions, along with a CD/flash drive containing the instructions in Word format. The filed set of instructions shall include both the agreed upon instructions and the proposed instructions to which the parties have not agreed. Each agreed upon instruction shall include the following notation at the bottom of each instruction: “This proposed instruction is agreed upon by the parties.” Each disputed instruction shall state which party is advancing it, along with the legal authority relied on by each party in support of and in opposition to each such instruction. Proposed instructions as to a given issue by different parties shall be grouped together. Generally, a charging conference will be held at which time a ruling will be made on each point for charge. Counsel are required to state objections to the proposed charge at the charging conference and to supply any proposed alternate language, together with case authority. The Court will not accept separate proposed jury instructions from the parties. The Court generally tries to rule on jury instructions at or prior to the final pretrial conference. 19. Proposed Findings of Fact and Conclusions of Law in Bench Proceedings Except where a shorter period is set by the Court (e.g., TRO and preliminary injunction matters), within fourteen (14) days of the conclusion of a hearing or bench trial (unless otherwise ordered), Plaintiff 11 shall file (and serve a courtesy copy on a CD/flash drive formatted in Word format) consecutively numbered proposed findings of fact and conclusions of law. Plaintiff’s proposed findings of fact shall address each contested issue of fact remaining and shall also include any facts stipulated to by the parties. Each proposed finding of fact shall be supported by clear and explicit reference to the record. Each proposed conclusion of law shall be supported by citation to appropriate authority. With the proposed findings of fact and conclusions of law, Plaintiff also shall file and serve a brief in support of judgment, integrating the proposed findings of fact with the proposed conclusions of law and demonstrating why the relief requested should be granted. The supporting brief should not exceed twenty (20) pages. Except where a shorter period is otherwise set by the Court (e.g., TRO and preliminary injunction matters), within fourteen (14) days after service of Plaintiff’s proposed findings of fact and conclusions of law (unless ordered otherwise), Defendant shall file (and serve a courtesy copy on CD/flash drive formatted in Word format) consecutively numbered counter findings law, of fact and consecutively numbered counter conclusions of corresponding to the same numbered findings of fact and conclusions of law proposed by Plaintiff. Each proposed counter finding shall be supported by clear and explicit reference to the record. Each proposed counter conclusion shall be supported by citation to appropriate authority. With the proposed counter findings and counter conclusions, Defendant also shall file and serve a brief in support of judgment integrating the counter proposed findings of fact with the counter proposed conclusions of law and demonstrating why the relief requested by defendant should be granted. The supporting brief shall not exceed twenty (20) pages. 20. Offers of Proof There should be no requests for offers of proof during trial as the parties will have discussed the witnesses at the 8:30 a.m. conference with the Court. 21. General Courtroom Rules Counsel can conduct the trial in any manner they see fit, provided it is done with courtesy and civility, and complies with the applicable Rules of Procedure and Evidence. Counsel may move around the Courtroom, so long as they do not invade any person’s personal space or block the view of any trial participant. Counsel abusing this prerogative are subject to being “grounded” by the Court. Those at counsel/support tables may have soft drinks in closed containers with a mechanically-closing lid only (no flimsy “take out” lids). Those requiring the use of laptops, computer systems, iPads, etc. for trial presentation must make advance arrangements via the Courtroom Deputy Clerk. 12 22. Use of Courtroom Technology The parties are required to use trial presentation technology, courtroom technology, and trial exhibit summaries (pursuant to Rule 1006 of the Federal Rules of Evidence), to the fullest extent possible in all cases. Should the parties require training or other information on use of the courtroom technology, the parties may contact Sean Fox, of the Information Technology Department, at (412) 208-7468. Unsecured, wireless internet access is available in the Courtroom. Counsel are expected to make arrangements to share major AV devices (projectors, jumbo screens, etc.). 23. Sample Documents The Court’s website page contains samples of its various forms of jury instructions and voir dire. F. Jury Deliberations (all cases) 1. Written Jury Instructions The jury will be provided with a copy of the jury instructions. 2. 3. 4. 5. 6. Exhibits in the Jury Room Generally, the jury will be given all admitted exhibits for use in deliberations. Jury Requests to Read Back Testimony or Replay Tapes During Deliberations Requests to read back testimony or replay tapes during deliberations will ordinarily be denied. Jury Questions During Deliberations/Polling All written questions submitted by the jury are supplied to counsel. Counsel and the Court will meet to discuss and hopefully agree on a reply. In most cases, the jury will then be summoned to the courtroom, where an oral reply will be read. A written reply is also provided when appropriate. The Court will poll the jury as a matter of course, and will give counsel the opportunity to review the verdict form prior to discharging the jury. Availability of Counsel During Jury Deliberations Trial counsel need not remain in the courtroom area but must be immediately available by telephone so that they can promptly return to the courthouse upon being contacted by the Court. Interviewing the Jury The jury will be told that it is up to them to decide if they choose to be interviewed. Any such interview must be conducted with courtesy and respect for the service of jurors. 13 IV. BANKRUPTCY APPEALS (TO THE DISTRICT COURT) A. B. C. Filing and Scheduling The brief for the appellant shall be served and filed within 14 days after entry of the appeal on the docket pursuant to Bankruptcy Rule 8007; the brief for appellee shall be served and filed within fourteen (14) days after service of appellant’s brief. Reply briefs may be filed according to the schedule set forth in Bankruptcy Rule 8009(a)(3), upon notification to the Court that such reply brief shall be filed. Oral Argument Oral argument is not generally scheduled but may be granted upon request. Other General Practices/Procedures Briefing schedules and other deadlines imposed by the Federal Rules of Bankruptcy Procedure will be modified, where appropriate, on the request of the party. V. CRIMINAL CASES A. Motions for Extensions B. C. D. The Court considers requests for extensions (including to file pretrial motions) on a case-by-case basis. All such motions should be filed at least two (2) days before the expiration of any pending motions schedule. The Court requires language in any proposed order that effectively excludes extended time for purposes of the Speedy Trial Act. Pretrial Conferences The Court will conduct one or more conferences with counsel prior to trial to deal with schedules, coordination with essential witnesses, and the like. Guilty Pleas The Court has no special rules regarding guilty pleas, or deadlines for accepting/rejecting plea agreements. The Court has a format which is generally followed for the guilty plea colloquy, a copy of which is posted on-line for counsel’s review. Voir Dire The Court conducts voir dire in criminal cases with the assistance of his law clerks and deputy clerk. General questions will be asked of the venire panel as a whole; specific individual inquiry with prospective jurors will then be undertaken as warranted. Counsel are permitted to augment the standard voir dire questions set forth in the Local Rules by submitting proposed questions which will be ruled upon or otherwise considered in formulating the general questions to be asked of the panel. The due date for proposed voir dire questions is set by the Trial Scheduling Order. So long as counsel is behaving, they will be permitted to ask follow up questions during individual examination of jurors during voir dire. 14 E. Trial In multi-defendant cases, all counsel may examine each witness. However, defense counsel should not duplicate areas previously covered by other defense counsel. If the parties request sequestration of witnesses, the Court grants the request. The Court usually permits the government to use of transcripts of tape recorded conversations. The jury will be instructed that the evidence is the tape recorded conversations, not the transcript, and that if what the jury reads on the transcript differs from what they heard on the recording, the recording controls. Defense counsel is permitted to determine when to make an opening statement. The Court permits the use of special interrogatories in a criminal case if appropriate Sentencing Memoranda The Court expects the filing of a sentencing memorandum per its standard presentence order. That standard order is posted on the Court’s Website, and is deemed incorporated into these Practices and Procedures. All motions or other matters regarding calculations of the Advisory Sentencing Guidelines, Departures or the calculation of Criminal History matters must be raised in the “Position with Respect to Sentencing Factors.” Those raised for the first time in the Sentencing Memorandum may be denied as untimely. Sentencing Conference The Court does not usually hold a sentencing conference regarding issues under the Sentencing Guidelines prior to the actual imposition of sentence, but will hold one if requested. The Court usually issues an order setting forth tentative findings and rulings on sentencing matters several days about one (1) week before sentencing. F. G. H. Other General Practices and Procedures 1. 2. 3. The Court will include recommendations to the Bureau of Prisons in the judgment order if appropriate. The Court requires the filing of a motion for leave to travel outside the Western District by a defendant, and each such motion should state the position of the Assistant U. S. Attorney and the Probation Officer. Counsel for the United States is responsible for obtaining any writs necessary for the appearance of persons in custody at any change of plea, or sentencing proceeding or other proceeding. Further, if the United States will move for bond revocation at any proceeding, the Assistant U.S. Attorney must so advise the Court and the defense counsel at least twenty-four (24) hours before the proceeding. 15 4. 5. Any counsel desiring to have an “in-custody” Defendant appear at any proceeding in civilian attire must make arrangements in advance with the Marshal’s Office. Defense counsel shall advise the Court’s Deputy Clerk in plenty of time if they want an “in-custody” Defendant to attend any proceeding in person (other than trial or sentencing, or other proceeding as required by Fed. R. Crim. P. 43(a) or a probation/supervised release revocation hearing, for which proceedings the Court will notify the Marshal’s Office). 16 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA December, 2016 CIVIL PRETRIAL ORDER AND NOW, this ____ day of ______________, 20___, the Court HEREBY ORDERS as follows: A. Final Pretrial Orders: 1. Jury Selection & Trial. Jury selection and trial are set for ______________, 20___ at 9:00 AM, in Courtroom 6A, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. 2. Pretrial Conference(s). A final pretrial conference shall be held on ______________, 20___ at 2:30 PM, in Courtroom 6A, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. All parties, party representatives and involved insurance representatives (each with full settlement authority), along with all lawyers who will participate in the trial, must be present in person. 3. a. Exchange of Witness Lists and Exhibits. Plaintiff shall file a pretrial statement on or before ______________, 20___. Plaintiff shall also file a final list of trial witnesses, listing separately (i) the witnesses it will call and (ii) the witnesses it may call if needed (other than purely for impeachment). For each witness listed, Plaintiff shall provide an offer of proof explaining the substance of the witness’ testimony. The offers of proof shall be no more than one (1) double-spaced page with twelve (12) point font. Plaintiff’s witness list and offers of proof shall be due by ______________, 20___. b. Defendant shall file a pretrial statement on or before ______________, 20___. Defendant shall also file a final list of trial witnesses, listing separately (i) the witnesses it will call and (ii) the witnesses it may call if needed (other than purely for impeachment). For each witness listed, Defendant shall provide an offer of proof explaining the substance of the witness’ testimony. The offers of proof shall be no more than one (1) double-spaced page with twelve (12) point font. Defendant’s witness list and offers of proof shall be due by ______________, 20___. c. On or before ______________, 20___, counsel shall file on CM/ECF a Joint Exhibit List Chart (with columns) setting forth all trial exhibits, by exhibit number, date, author, type of document, objection as to authenticity (if any) with response, and objection as to admissibility with response. At the same time, a copy of each exhibit in a binder or notebook, shall be delivered to Chambers. (The actual copy of the exhibits should not be filed on CM/ECF, only the Joint Exhibit List Chart shall be filed on CM/ECF). The Joint Exhibit List Chart, with a copy of the exhibits in a binder, shall be hand-delivered to Chambers by ______________, 20___. d. All exhibits must be exchanged and marked in advance of trial. One paper copy of each exhibit displayed during trial is to be provided to the Courtroom Deputy Clerk following its display. In order for the Jurors’ Exhibit Binder to be complete when deliberation begins, counsel must have provided one paper copy of each admitted exhibit by the last day of trial. Counsel must provide the Court with binder(s) that will hold the paper copies of the exhibits to be submitted to the jury at the close of trial. e. Voluminous data must be presented by summary exhibits pursuant to Fed.R.Evid. 1006, and voluminous exhibits shall be redacted to eliminate irrelevant material (which shall remain available for examination by opposing counsel). Where copies of documents are offered, the originals shall be available for examination, unless waived by stipulation. 4. Designation of Discovery Excerpts to be Offered at Trial. The parties shall submit a designation of excerpts from depositions, interrogatory answers, and responses to requests for admission to be offered at trial (other than for impeachment) by ______________, 20___. 5. Motions. The parties shall file all motions in limine, including motions and proposed orders of court under Fed. R. Evid. 104(a) and motions to limit or sever issues, together with supporting briefs or memoranda of law, by ______________, 20___. Responses shall be filed by ______________, 20___. All briefs supporting or opposing such motions are limited to 10 pages. All Daubert motions must be filed by ______________, 20___, with responses filed no later than ______________, 20___. 6. Proposed Jury Instructions & Verdict Slips. Counsel shall meet to agree on a joint verdict slip and a joint set of proposed substantive jury instructions regarding Plaintiff(s)’ claims and their elements, any defenses and their elements, and any evidentiary or other matters particular or unique to this case; the parties need not submit “boilerplate” or standard civil jury instructions. After said meeting, and on or before ______________, 20___, counsel shall file one combined set of proposed instructions, along with CD/flash drive containing the instructions in Word format. The filed set of instructions shall include both the agreed upon instructions and the proposed instructions to which the parties have not agreed. Each agreed upon instruction shall include the following notation at the bottom of each instruction: “This proposed instruction is agreed upon by the parties.” Non- agreed upon instructions shall state which party is advancing it, along with the legal authority relied upon by each party in support of and in opposition to each such instruction. Each instruction to which the parties have not agreed shall indicate at the bottom of the instruction the name of the party proffering the instruction. Each instruction to which the parties have not agreed shall indicate at the bottom the name of the party proffering the instruction. Proposed instructions by different parties shall be grouped together. A charging conference will be held, at which time a ruling will be made on each point for charge, and a copy of the Court’s proposed charge will be supplied to counsel. Counsel are required to state objections to the proposed charge at the charging conference and to supply the alternate language, together with case authority. The Court will not accept separate proposed jury instructions from the parties. The Court generally rules on party-proposed jury instructions at the Final Pretrial Conference. A joint proposed verdict slip shall be filed by ______________, 20___. If parties, after meeting in an attempt to agree on a joint verdict slip are unable to agree, the parties shall submit their respective proposed verdict slips by ______________, 20___. 7. Proposed Voir Dire. Counsel are permitted to supplement the standard questions, provided that the proposed supplemental voir dire questions are submitted to the Court in writing by ______________, 20___. 8. Joint Stipulations. The parties shall file joint stipulations by ______________, 20___. All possible stipulations shall be made as to: a. b. c. d. e. f. g. Facts; Issues to be decided; The authenticity and admissibility of exhibits; Expert qualifications and reports; Deposition testimony to be read into the record; A brief statement of the claims and defenses to be read to the jury during voir dire and to introduce the trial; and Exhibits or other presentation aids to be used in operating statements. Counsel shall meet at a mutually convenient time and place to produce the joint stipulation in time for filing as ordered. B. Trial Procedure 1. Hours. Court is ordinarily in trial session, unless otherwise ordered by the Court, Monday through Friday, 9:00 a.m. to 4:30 p.m. with breaks where appropriate. All counsel are expected to be in their seats, and witnesses available, and ready to commence at the appointed times. 2. Exhibits. Because counsel will have previously marked and exchanged all exhibits and provided a copy to the Court, it will not be necessary during the trial to show exhibits to opposing counsel prior to using them. 3. Approaching the Witness. It will not be necessary for counsel to request permission to approach a witness. 4. Opening and Closing Statements. Up to thirty (30) minutes is ordinarily permitted to each side for opening and for closing statements, depending on the complexity of the case. Counsel may use exhibits or charts in opening argument, provided that the same have been provided to opposing counsel beforehand and either agreement was reached or the Court has ruled upon the matter. 5. Side Bar Conferences. The Court believes that counsel should be considerate of the jurors' time. Consequently, side bar conferences are disfavored unless necessary to avoid prejudice. Such conferences tend to disrupt the presentation of evidence, can waste the jury's time and unduly extend the length of the trial. Counsel will meet with the Court at 8:30 a.m. each day (or earlier if necessary to ensure that trial commences on time) to raise points of evidence or other issues that would otherwise necessitate a side bar conference. Failure to raise the issue at that time will generally result in a disposition of the in-court objection in open court. If necessary, counsel and the Court may amplify their objections and rulings on the record after the jury has been excused for a break, for lunch, or for the day. In addition, it is expected that counsel will anticipate evidentiary issues requiring lengthy argument and will take up such matters out of the presence of the jury. The Court will be available at 8:30 a.m. each morning to address such issues. It is the responsibility of counsel to notify other counsel of the need for such a conference at 8:30 a.m. and all other counsel will be expected to be present at the appointed time for argument. The Court will not delay the proceedings to respond to last minute requests for conferences to discuss matters that, in the exercise of reasonable diligence, could have been heard at the morning conference. 6. Witness List. Prior to the commencement of the trial, counsel shall provide opposing counsel with a complete witness list, and shall provide opposing counsel throughout the trial with the actual list of the next day's witnesses by 5:00 p.m. in the order they are expected to be called. The same procedure will be employed by both sides at the end of each trial day. Counsel should be sure that they have adequate witnesses to fill the time allotted each day. 7. 8. Note Taking. The jury shall be permitted to take notes. Jury Questions/Jury Deliberations. All written questions submitted by the jury are supplied to counsel. Counsel and the Court will meet to discuss and hopefully agree on a reply. The jury is then summoned to the Courtroom in most cases and the oral reply is given to them. A written reply is provided where appropriate. 9. Jury Instructions. A copy of the jury instructions shall be provided to the jury for use during its deliberations. 10. Jury Access to Exhibits. Unless otherwise advised by counsel, it will be assumed that all admitted exhibits will be sent out with the jury. 11. Use of Technology. The parties are required to use trial presentation technology, courtroom technology, and trial exhibit summaries pursuant to Rule 1006 of the Federal Rules of Evidence, to the fullest extent possible. 12. Other Procedures. The parties are directed to the Court’s Chambers Rules and Procedures, available on the Court’s website for additional pretrial and trial procedures. SO ORDERED this __ day of ___________, 20__. ________________________________________ Mark R. Hornak United States District Judge cc: All counsel of record IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA December, 2016 ORDER SETTING INITIAL CASE MANAGEMENT CONFERENCE The above case has been assigned to United States District Judge Mark R. Hornak for all further proceedings. Pursuant to Local Rule 16.1, an initial case management conference will be conducted to discuss narrowing of the issues, the extent of pretrial preparation, discovery procedures, the early disposition of controlling questions of law, the probable extent of provable damages, the possibility of settlement, alternative dispute resolution options, and any other matters that will contribute to prompt and fair disposition of the case; and establish a date for the pretrial conference and a date for the commencement of the trial. Lead trial counsel shall participate in the conference. Lead trial counsel shall obtain full settlement authority prior to the conference and must be prepared to discuss settlement of the case and alternative dispute resolution options in detail. All pending motions are subject to argument and disposition at the conference. Clients and insurance carrier representatives must be available by telephone. The Conference will be held on _________, 20__ at _____ M, in Room 6170, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. Any counsel may participate by telephone upon request made at least forty-eight (48) hours in advance. As required by Rule 26(f) of the Federal Rules of Civil Procedure the parties must, as soon as practicable, Aconfer to consider the nature and basis of their claims and defenses and the possibilities for a prompt settlement or resolution of the case, to make or arrange for the disclosures required by Rule 26(a)(1), and to develop a proposed discovery plan[.]@ See Fed.R.Civ.P. 26(f). The Aconfer@ meeting must occur in person or by telephone (not via e-mail exchanges), and all trial counsel shall personally participate. On or before ________, 20__, and pursuant to Rule 26(f), and as required by Local Rule 16.1.1, the attorneys of record and all unrepresented parties that have appeared in this case are jointly responsible for submitting to the Court the following two (2) documents: (a) A written report required by Fed.R.Civ.P. 26(f), in the format set forth in Appendix LCvR 16.1 A (current form) to the Local Rule 16.1.1B (b) A stipulation selecting an ADR process (pursuant to Local Rule 16.2) (current form). If counsel believes that ADR should occur at a time other than within sixty (60) days of the Initial Case Management Conference, they are welcome to state that in the Rule 26(f) Report, setting out their reasons, and proposed timing for the ADR session. (c) The Court will ordinarily include the following language in its Initial Case Management Order (or in the alternative, enter an Order in the form set forth at Appendix LCvR 16.1.D of the Local Rules) unless a party objects: “Pursuant to Fed. R. Evid. 502(d), no inadvertent disclosure connected to this litigation shall act as a waiver in any proceeding of any otherwise applicable privilege or protection unless so ordered by this Court.” Documents (a) & (b) may be downloaded from the Court=s website at www.pawd.uscourts.gov, Aforms.@ cc: All counsel of record SO ORDERED this __ day of ___________, 20__. _______________________________________ Mark R. Hornak United States District Judge IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA December, 2016 INITIAL CASE MANAGEMENT ORDER AND NOW, this ____ day of ___________, 20__, an initial case management conference having been held pursuant to Federal Rule of Civil Procedure 16 on ___________, 20__, it is hereby ORDERED that the parties comply with the following: 1. Local Rule 16.1: This civil action is governed by Local Rule of Civil Procedure 16.1 – Pretrial Procedures. 2. Settlement Negotiations: Counsel for the parties shall confer with their clients and any involved insurance carriers before all case management, status or pretrial conferences to obtain authority to participate in settlement negotiations conducted by the Court. A client’s representative/insurance carrier representative shall be available by phone for any such conference. If a party anticipates potentially relying upon an insurance carrier to satisfy all or part of any settlement or award, a representative of the insurance carrier(s) who possesses full, unilateral settlement authority shall be available to participate in all case management conferences, status conferences, and settlement negotiations, including ADR sessions, either in-person or via telephone. 3. Initial Scheduling: The parties shall comply with the following deadlines: a) Disclosures pursuant to Fed. R. Civ. P. 26(a) shall be made on or before ________________, 20__. b) c) d) Additional parties shall be joined on or before ________________, 20__. Pleadings shall be amended by ________________, 20__. Fact discovery shall be completed on or before ________________, 20__. The Court may extend the discovery deadline upon a showing of good cause and upon motion filed prior to the expiration of such deadline. The motion shall: (i) specifically state all discovery completed to date and to be conducted if the extension is granted; (ii) contain a showing of good cause for the requested extension; (iii) list any previous extensions of discovery; and (iv) attach a proposed order which establishes specifically the extended closure date being requested and setting forth the discovery to be conducted. e) Plaintiff’s expert report(s) shall be produced on or before ________, 20__. Defendant’s expert report(s) shall be produced on or before ________________, 20__. f) Defendant shall depose Plaintiff’s expert on or before ___________, 20__. Plaintiff shall depose Defendant’s expert on or before ________________, 20__. g) Third party expert report(s) shall be produced on or before _______, 20__. Third party expert deposition(s) shall be completed on or before ______________, 20__. h) Pretrial motions relating to discovery or this Order shall be filed on or before the last day of the applicable discovery deadline. This deadline does not apply to motions to extend discovery, motions to compel discovery, motions in limine, motions for summary judgment, or other pretrial motions. Responses to motions relating to discovery or this Order shall be filed within seven (7) days from the date of service of the motion. The Court frequently resolves such motions by telephone conference, which the parties may also request. The Court may also schedule a telephone conference before the time runs for any response. In such a case, the non- moving party is excused from filing a response; instead, said party should be prepared to state its position at the telephone conference. Replies to such responses shall be filed seven (7) days from the date of service of the response. Replies may be filed without the leave of the Court. Surreplies shall not be filed without leave of the Court obtained in advance. For further information regarding general motions practice, please see the “Chambers’ Rules” website available from the United States District Court for the Western District of Pennsylvania’s homepage. 4. Alternative Dispute Resolution (ADR): The parties are advised to comply with all ADR requirements pursuant to Local Rule of Civil Procedure 16.2. The parties are directed to promptly schedule and file the notice of the ADR proceeding. A representative of any insurance carrier which may be responsible, in whole or in part, for any portion of the claims alleged and who has full, unilateral settlement authority must attend any ADR proceeding in person if insurance proceeds could cover any portion of a settlement or verdict. 5. Procedures Following Inadvertent or Other Disclosure (“Clawback”): Pursuant to Local Rule LCvR 16.1(D), and to aid in the implementation of Fed. R. Evid. 502, the following is ordered in the event of an inadvertent a disclosure of any privileged or trial preparation/attorney work product material: a) The producing party shall promptly notify all receiving parties of the inadvertent production of any privileged or trial preparation material. Any receiving party who has reasonable cause to believe that it has received privileged or trial preparation material shall promptly notify the producing party. b) Upon receiving notice of inadvertent such production, any receiving party shall immediately retrieve all copies of the inadvertently disclosed material and sequester such material pending a resolution of the producing party’s claim either by the Court or by agreement of the parties. c) If the parties cannot agree as to the claim of privilege or protected status, the producing party shall move the Court for a resolution within 30 days of the notice set forth in subparagraph (a). Nothing herein shall be construed to prevent a receiving party from moving the court for a resolution, but such motion must be made within the 30-day period. d) Pursuant to Fed. R. Evid. 502(d), no inadvertent disclosure connected to this litigation shall act as a waiver in any proceeding of any otherwise applicable privilege or protection unless so ordered by this Court. 6. Discovery and Other Case Management Disputes: In the Court’s experience, many discovery and case management disputes can be promptly resolved in a conference with the Court and counsel. Therefore, in the event of such a dispute, lead counsel shall confer in person or by telephone, agree on the scope and nature of the dispute, and then contact the involved law clerk or the Courtroom Deputy to request a telephone status conference. The Court will usually either conduct the conference immediately, or set such a conference to occur within 24 hours, and more often than not, the dispute will be resolved at that time. The Court may, in situations involving more substantive matters, direct counsel to file the appropriate motion for relief. The Court will conduct a status conference at any time at the request of the parties. 7. Other Deadlines/Post-Discovery Status Conference: A Post-Discovery Status Conference is set for __________________, 20__, at __:__ _.m., at which time deadlines for dispositive motions, and a presumptive trial date, will be set. In the event a telephone status conference is scheduled, all participating counsel shall contact Chambers at 412-208-7433 at least 48 hours before the conference with their preferred contact number. The Court will initiate the call. ______________________________________ Mark R. Hornak United States District Judge cc: All counsel of record IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA December, 2016 PRETRIAL ORDER IN CRIMINAL CASE AND NOW, this _____ day of _________, 20___, the Court HEREBY ORDERS as follows: A. Final Pretrial Orders 1. Jury Selection & Trial. Jury selection and trial are set for _______, __________, 20___ at 9:30 a.m., in Courtroom 6A, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. 2. The Court shall conduct a pretrial conference in this case on _______, _______, 20__ at __________. A preliminary pretrial conference with the Court=s law clerk shall be held on ____________, 20__ at _______. 3. Exchange of Witness Lists and Exhibits. a. The government shall file with the Court a list of trial witnesses, under seal, listing separately the witnesses it will call and the witnesses it may call if needed (other than purely for impeachment or rebuttal). For each witness listed the government shall provide an offer of proof explaining the substance of the witness= testimony. The offers of proof shall be no more than one (1) double-spaced page with twelve (12) point font. Said witness list and offers of proof need not be served on defendant, and shall be due by_______, 20__. b. Defendant shall file with the Court, under seal, his or her list of trial witnesses, excluding defendant, listing separately the witnesses it will call and the witnesses it may call if needed (other than purely for impeachment or rebuttal). For each witness listed Defendant shall provide an offer of proof explaining the substance of the witness= testimony. The offers of proof shall be no more than one (1) double-spaced page with twelve (12) point font. Said witness list and offers of proof need not be served on the government, and shall be due by _______, 20__. c. All exhibits must be exchanged and marked in advance of trial. A Joint Exhibit Binder is to be provided to the Court by the government no later than _______, 20__; exhibits that are not objected to shall be marked AJ-1, J-2, J-3 etc.; the government=s exhibits which are being objected to by the defense shall be marked numerically, i.e., G-1, G-2, G-3, etc.; the defendant=s exhibits which are being objected to by the government shall be marked alphabetically, A, B, C, etc. Similarly, a binder of disputed exhibits shall be provided to the Court by each party on _______, 20__. Additionally, a chart shall be provided to the Court, in hard copy and email form, identifying each exhibit by number and name, providing a brief description of the nature of the objection (if any), and a space for the Court=s ruling on the objection(s). Objections will be resolved at or before the pretrial conference. The Court expects that all exhibits will be presented using the Court’s electronic presentation system. All trial counsel are expected to know how to use it. d. No later than the morning of trial, the government shall submit three (3) copies of the Joint Exhibit Binder, marked AJoint Exhibit Binder@. e. Voluminous data shall be presented by summary exhibits pursuant to Fed.R.Evid. 1006, and voluminous exhibits shall be redacted to eliminate irrelevant material (which shall remain available for examination by opposing counsel). Where copies of documents are offered, the originals shall be available for examination, unless waived by stipulation. 4. Jencks Act - Impeachment Materials - Rule 404(b). The government shall provide defense counsel with copies of any Brady/Giglio impeachment materials not previously disclosed, and any additional evidence of defendant's uncharged conduct which it intends to introduce at the trial pursuant to Federal Rule of Evidence 404(b) which was not previously disclosed (see Docket No. [40]), on or before _______, 20__. The government is encouraged to provide all Jencks Act materials prior to the pretrial conference. Notwithstanding this provision, all Brady/Giglio material must be disclosed in accord with prevailing law in a timely manner (which may be at a time earlier than in an Order), irrespective of the timeline in this Order. 5. Motions. The parties shall file all remaining motions and motions in limine, including motions under Fed.R.Evid. 104(a), and motions to limit or sever issues, together with supporting briefs or memoranda of law, by _______, 20__. Responses shall be filed by _______, 20__. All briefs supporting or opposing such motions are limited to 5 pages. 6. Proposed Jury Instructions & Verdict Slips. Counsel shall meet to agree on a joint set of proposed jury instructions regarding the offenses charged and their elements, the theory of the defense, and any matters particular or unique to this case, including limiting instructions as to the phrase “among others” in the Indictment; the parties may also submit Aboilerplate@ or standard criminal jury instructions. After said meeting, and on or before _______, 20__, counsel file a unified (meaning one) combined set of proposed instructions, and shall e-mail a copy of the proposed instructions to the law clerk assigned to the case, or alternatively, deliver a computer disk/CD to chambers containing the instructions in Word format. The filed set of instructions shall include both the agreed upon instructions and the proposed instructions to which the parties have not agreed. Each agreed upon instruction shall include the following notation at the bottom: AThis proposed instruction is agreed upon by the parties.@ Each instruction to which the parties have not agreed shall indicate at the bottom the name of the party proffering the instruction. Proposed instructions by different parties shall by grouped together (i.e., instruction should be matched with counter instructions). A charging conference will be held, at which time a ruling will be made on each disputed point for charge and a copy of the Court=s proposed charge will be supplied to counsel. Counsel are required to state objections to the proposed charge at the charging conference and to supply the alternate language, together with case authority. The Court will not accept separate proposed jury instructions from the parties. 7. Voir Dire. Counsel are permitted to supplement the standard questions provided that the proposed supplemental voir dire questions are submitted to the Court in writing by _______, 20__. Voir dire questions will be asked by the Court, with as many questions as possible asked of the panel en banc. Individual voir dire will be focused, in the interest of conserving time. The government shall have six (6) peremptory challenges and the defense shall have ten (10) peremptory challenges collectively. Each side shall have one challenge for each two (2) alternate jurors. 8. Joint Stipulations. The parties shall file joint stipulations by _______, 20__. All possible stipulations shall be made as to: a. Facts; b. Issues to be decided; c. The authenticity and admissibility of exhibits; d. Expert qualifications and reports; e. Deposition testimony to be read into the record; and f. A neutral summary of the indictment and a brief statement of the defense (if requested by the Defendant) which will be read to the jury to introduce the trial and to be read to the venire before jury selection. Counsel shall meet at a mutually convenient time and place to produce the joint stipulation in time for filing as ordered. B. Trial Procedure 1. Hours. Court is in trial session, unless otherwise ordered by the Court, Monday through Friday, 9:300 a.m. to 4:30 p.m. with breaks where appropriate. All counsel are expected to be in their seats and ready to commence at the appointed times. 2. Exhibits. Because counsel will have previously marked and exchanged all exhibits and provided a copy to the Court, it will not be necessary during the trial to show exhibits to opposing counsel prior to using them. All counsel are expected to fully utilize the Courtroom Presentation Technology. 3. Approaching the Witness. It is not necessary for counsel to request permission to approach a witness. 4. Testifying Officers and Agents and Other Witnesses. All testifying law enforcement officers and agents shall have any reports or declarations they have prepared or used to refresh their recollections with them on the witness stand. All witnesses who will testify about the content of documents will review those documents prior to taking the stand and be prepared to answer questions about document contents based on their prior reading. Counsel are responsible for obtaining any necessary writs for the appearance of any person in custody. 5. Opening and Closing Statements. Unless ordered otherwise, up to thirty (30) minutes is permitted to each side for opening and closing statements, depending on the complexity of the case. Counsel may use exhibits or charts in opening argument provided that the same have been provided to opposing counsel beforehand and either agreement was reached or the Court has ruled upon the matter. 6. Side Bar Conferences. The Court believes that counsel should be considerate of the jurors' time. Consequently, except where necessary to prevent legal prejudice to the parties or the trial process, side bar conferences are disfavored because they can waste the jury's time and unduly extend the length of the trial. Counsel will meet with the Court at 8:3045 a.m. each day (or earlier if necessary to ensure that trial commences on time) each day to raise points of evidence or other issues that would otherwise necessitate a side bar conference. If necessary, counsel and the Court may amplify their objections and rulings on the record after the jury has been excused for a break, for lunch or for the day. The Court will be available at 8:3045 a.m. each morning to address such evidentiary and other issues. It is the responsibility of counsel to notify other counsel of the need for a conference at 8:3045 a.m. and all other counsel will be expected to be there at the appointed time for argument. The Court will not delay the proceedings to respond to last minute requests for conferences to discuss matters which, in the exercise of reasonable diligence, could have been heard at the morning conference. 7. Witness List. Counsel shall provide opposing counsel throughout the trial with a list of the next day's witnesses in the order they are expected to be called. The same procedure will be employed by both sides at the end of each trial day. Counsel should be sure that they have adequate witnesses to fill the time allotted each day. 8. Note Taking. The jury shall be permitted to take notes, and will be given detailed cautionary instruction as to their appropriate use. 9. Jury Questions. All written questions submitted by the jury are supplied to counsel. Counsel and the Court will meet to discuss and hopefully agree on a reply. The jury is then summoned to the Courtroom in most cases and an oral the verbal reply is given to them. A written reply is provided where appropriate. 10. Jury Instructions. A copy of the jury instructions shall be provided to the jury for use during its deliberations. 11. Jury Access to Exhibits. Unless otherwise advised by counsel, it will be assumed that all admitted exhibits will be sent out with the jury. SO ORDERED this __ day of ___________, 20__. ________________________________________ Mark R. Hornak United States District Judge cc: All counsel of record

=== Law Clerk Hiring Procedures ===

LAW CLERK HIRING May 2026 Judge Hornak has either two (2) or three (3) term law clerks for coterminous one-year terms, beginning in late August/early September. Judge Hornak accepts applications only via OSCAR. He almost always hires law clerks that will begin service the Fall after their law school graduation, as opposed to after beginning the practice of law. Thus, he usually interviews and makes hiring decisions shortly after clerk applicants have finished their second year of law school, usually by early July, for the Fall one year hence. At times, he defers interviews/decisions until what would be early in the applicants’ final semester of law school. New law clerks are encouraged to take the July Bar Examination (in the jurisdiction of their choice) immediately before they begin their clerkship. Law clerks are permitted to receive and to accept offers of post-clerkship employment. Judge Hornak’s hiring preferences are detailed on his OSCAR page. He usually interviews 10-15 candidates to fill the two (2) or three (3) spots for each year. He receives approximately 200 applications each year. His clerks have attended 17 law schools, 30 colleges and universities, and come from 15 states. The following is a listing of Judge Hornak’s law clerks to date, their law schools, and other clerkships. 2026-2027 Andrew Besner, University of Chicago Edward LaDuca, SUNY Buffalo Alyssa Kapasi, Washington University (St. Louis) 2025-2026 Eleanor Newman, Harvard Law School (Hamilton, 7 Adrian Schmitt, Georgetown University Law Center (Chung, 3 Cir.) th rd Cir.) 2024-2025 Lucy Augustine, Duke University Peter O’Neill, Stanford University (Shwartz, 3d Cir.) Carrie Yamamoto, Duquesne University (Bloch/Fischer/Haines, W.D. Pa.) 2023-2024 Alec Bosnic, University of Pittsburgh (Kahn, 2d Cir.) Mattie Haag, Harvard Law School (Moore, 6 Cir.) th 1 2022-2023 Jennalee Beazley, Duke University Clare Saunders, Georgetown University Law Center (Smith, 3d Cir.) Katherine Thomas, American University 2021-2022 Nicole Agama, University of Virginia (Chung, 3d Cir.) Madeline Dolan, American University Hanna Rutkowski, University of Michigan (Diaz, 4 th Cir.) 2020-2021 Nina Cahill, University of Michigan (Stranch, 6 Molly Prindle, American University (Gilman, 6 Annie Sloan, University of California, Berkeley (Murguia, 9 Cir.) Cir.) th th th Cir.) 2019-2020 John Webster Leslie, University of Virginia Angela Lesnak, University of California, Berkeley Terence Parker, Notre Dame (Ripple, 7 Cir.) th 2018-2019 Amelia DeGory, Duke University (Rendell, 3d Cir.) Nick Rutigliano, University of Virginia Katherine Vaky, Washington University (St. Louis) (Wilkins, D.C. Cir.) 2017-2018 Alysha Bohanon, University of Minnesota (Thacker, 4 Katherine Vaky, Washington University (St. Louis) (Wilkins, D.C. Cir.) Cir.) th 2016-2017 Jacqueline Lash, Harvard Law School (Fuentes, 3d Cir.) Cir.) Gavin Thole, University of Michigan (Kleinfeld, 9 th 2015-2016 Matthew Greer, Georgetown University Law Center (Hall, 2d Cir.) Kevin Zimmerman, University of Chicago (J. Carnes, 11 Cir.) th 2014-2015 Doug Baker, University of Pittsburgh (Fisher, 3d Cir.) Bethany Lipman, Georgetown University Law Center (McLeese, D.C. Ct. of Apps.) 2 2013-2014 Joseph Parsons, University of Pittsburgh Ginevra Ventre, Duquesne University 2012-2013 Peter Dickos, Harvard Law School Haley Wojdowski, University of Pennsylvania 2011-2012 Lisa Henry, University of Pittsburgh Brett Seifarth, Case Western Reserve University (Finan, Md. Circuit Ct.) 3

=== Order on Civil Motion Practice ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA December, 2016 STANDING ORDER AND PROCEDURES ON CIVIL MOTION PRACTICE Judge Mark R. Hornak The parties, in addition to the rules set forth in the Federal Rules of Civil Procedure and the Court=s Local Rules, shall follow the procedures set forth below in making or responding to motions in any case assigned to this member of the Court. This Order supersedes any prior Order on these matters in this action, and is applicable to all pending civil proceedings unless otherwise ordered by the Court. 1. Form of Motions. A motion should consist of a document setting forth, in a short and plain statement, the specific relief sought, the factual and legal grounds for the relief sought, and shall affirmatively state whether the motion has been discussed with all other parties, and their position as to the relief sought. Other than routine administrative/scheduling motions, each substantive motion shall also be supported by a separate brief in support that contains the factual and legal support for the relief sought. Evidentiary materials in support of, or opposition to, a motion should be plainly marked and may be attached to the motion or brief, or compiled and filed in a separate document. Counsel should furnish only the evidentiary materials that are necessary to deciding the motion. A proposed order setting forth the specific relief requested shall be filed as a separate attachment. “General” orders (e.g. “the motion is granted”) are not sufficient. 2. Form of Responses. The opposing party shall file a separate response to every motion. The moving party may also file a reply to such response as a matter of course, as set forth in paragraph 5. Unless otherwise directed, the response and/or reply should be titled in the form of AA=s Response [Reply] in Opposition to [Support of] B=s Motion [for/to] _____,@ as the case may be. A brief shall also be filed with the response to each substantive motion. A proposed order shall be filed as a separate attachment. 3. Various Motions. a. Each case management or discovery motion shall affirmatively state that the motion has been discussed with all parties, the position of each party as to the motion, and the relief it seeks. If the non-moving party or parties do not oppose the motion, or the motion is of a type that normally does not implicate the substantial rights of a non-moving party (e.g., motion to withdraw as counsel, motion to set a conference, most motions for extension of time), the non-moving party shall so state in its response. No response need be filed to a joint or unopposed motion. The Court may decide motions that do not implicate the substantial rights of the opposing party, or which state that the motion is either joint or not opposed by all parties without a response. Absent such action by the Court, a response should be filed for all motions. Letters do not constitute motions or responses on the record. Failure to respond in a timely fashion may be deemed as conceding the grounds for any motion. 2 b. In the Court’s experience, many discovery and case management disputes can be promptly resolved in a conference with the Court and counsel. Therefore, in the event of such a dispute, lead counsel shall confer in person or by telephone, agree on the scope and nature of the dispute, and then contact the involved law clerk or the Courtroom Deputy to request a telephone status conference. The Court rarely finds arguments based on the principle of “sauce for the goose, sauce for the gander” to be persuasive in discovery disputes. The Court will usually either conduct the conference immediately, or set such a conference to occur within 24 hours, and more often than not, the dispute will be resolved at that time. The Court may, in situations involving more substantive matters, direct counsel to file the appropriate motion for relief. This applies to all discovery motions. c. All motions to amend a pleading or document must attach as an exhibit the proposed amended document showing the proposed changes in “redline” format. 4. Deadlines for Responses. a. Responses to motions relating to discovery or other case management pretrial motions shall be filed 7 days from the date of service of the motion. Should the moving party believe that there is particular urgency to the grant or denial of a motion requiring expedited treatment due to the particular facts or circumstances of the matter, they should so state in the motion, and also advise Chambers and 3 counsel for all other parties of same by telephone, and the Court may consider modifying the response time. The Court also frequently resolves discovery and non-dispositive pretrial motions by telephone conference, which any party may request. The Court also may schedule a telephone conference before the time runs for any response. In such case, the non-moving party is excused from filing a written response and should state its position at the telephone conference. b. Responses to motions for summary judgment shall be filed 30 days from the date of service of the motion. c. Unless otherwise stated in a specific Order, responses to all motions other than those referenced in (a) and (b) above shall be filed 14 days from the date of service of the motion. d. The Court will not otherwise issue briefing orders. Upon the filing of a motion, the parties should proceed as set forth in this Order. 5. Reply Briefs. A reply brief is defined as the second brief advocating a party=s position on the same motion filed after the non-moving party=s response. Reply briefs may be filed, without leave of court, 7 days (14 days for replies in summary judgment matters) from the date of service of the response to which they reply. Reply briefs are most helpful when they identify and respond to the novel matters contained in the opposition brief that merit a reply. Rehashing of the original argument is not helpful. Surreply briefs, or other briefs, may be filed only with leave of court, obtained in advance of filing. 6. Oral Argument. Motions may be decided with or without oral argument as determined by the Court. Any party believing that oral argument will materially advance the 4 decisional process may so advise the Court and request argument. The Court often rules on the record at the end of oral argument. 7. Extensions. Motions to extend deadlines should be made as any other motion, but are more likely to be decided without response because of the Court=s inherent discretion over this subject. Counsel opposing a request for a short extension should be prepared to advise the Court as to the actual prejudice granting the extension would cause. Unopposed requests to extend a filing deadline by five (5) days or less may be referred to the Court in the first instance by a phone call to Chambers. Every proposed order accompanying a motion to extend deadlines shall include the date certain, or a blank space for insertion of the date certain, on which the proposed new deadline falls. On a motion that affects more than one deadline, such as an extension of discovery that affects all deadlines in the case management order, the proposed order shall restate all of the deadlines affected. 8. Joint Motions. Joint, consent, or uncontested motions on matters that do not implicate the substantial rights of the parties are encouraged and will be promptly decided. A joint, consent, or uncontested motion shall so state in its title. Joint motions in cases with more than two parties that have the consent of fewer than all the parties shall so state on the first page. Counsel=s representation that a motion is joint or consented to is sufficient. 9. Page Limits. a. Briefs in support of and opposing discovery and case management motions shall be limited to 10 pages. b. Briefs in support of and opposing motions in limine shall be limited to 10 pages. 5 c. Briefs in support of and opposing motions to dismiss and summary judgment motions shall be limited to 25 pages, excluding tables. d. Briefs in support of and opposing all other motions shall be limited to 15 pages. e. Reply briefs as to motions to dismiss or summary judgment motions shall be limited to 15 pages; as to all other motions 10 pages. f. All text in briefs shall be in 12 point font (footnotes in at least 10 point font), with one inch margins. Text must be double-spaced; footnotes may be single-spaced. Evasion of these standards or page limits will cause the excess material to be treated as being outside the record without further notice to counsel. g. Counsel and the parties should be aware that in the Court=s experience, shorter briefs are almost always much more persuasive because they get to the point faster. They also contain less extraneous material that dilutes the parties= main arguments and frequently interferes with prompt resolution. Long, rambling trips down the memory lane of background information are rarely helpful to the Court. Also, extensive recitations of generally-applicable, settled decisional standards (grant/denial of summary judgment, or a motion to dismiss, for example) are not necessary. 10. Citations in Briefs. The argument portion of every brief in support of or in response to a motion shall cite to current authority from the Supreme Court of the United States or the United States Court of Appeals for the Third Circuit. Otherwise, citation to current 6 authority from a district court in this circuit or another court of appeals, if available, that establishes the legal point argued is most appropriate. 11. Courtesy Copies. If any brief together with appendices or exhibits equals or exceeds 50 pages, a courtesy paper copy of the brief and appendices or exhibits shall be furnished to the Court at the time the brief and appendices or exhibits are electronically filed. The courtesy copy should be 3-hole punched and placed in one or more standard black presentation binder(s) (no thicker than three (3) inches). The binder’s front cover and spine should be labeled with the case name, case number, and the subject matter of the materials, along with clear identification of the ECF document to which it relates, and the filing party. Counsel should not submit any other courtesy copies unless requested by the Court. 12. Other Deadlines. This Order does not affect response deadlines set by any federal statute or the computation of time under the Federal Rules of Civil Procedure. 13. Discretion to Modify. The Court may alter any of these provisions by Order, or by notice from court staff at the Court=s direction, in the interests of justice. SO ORDERED this __ day of _______, 20__. cc: All counsel of record Mark R. Hornak United States District Judge 7

=== Sentencing Hearing Order ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA December, 2016 ORDER OF COURT SCHEDULING SENTENCING HEARING IT IS HEREBY ORDERED that a sentencing hearing for the defendant will be held on _____________, 20__ at __:__ _M in Courtroom 6A, 6th Floor, United States Courthouse, 700 Grant Street, Pittsburgh, Pennsylvania. In the event a request for continuance becomes necessary, any such request should be made as far in advance of the above-referenced scheduled hearing as is practicable. 1. On or before __________, 20__ (usually 7-14 days before Sentencing), each counsel shall submit to the Court the following: A. A Sentencing Memorandum addressing individually each of the 18 U.S.C. '3553(a) factors which counsel deems relevant to this Court’s consideration and determination of (i) an appropriate advisory guidelines sentence, including, but not limited to: (a) the potential range of the term of imprisonment; (b) the potential range of the term of supervised release or probation; (c) conditions of supervised release or probation; (d) restitution; and (e) forfeiture. Said Sentencing Memorandum shall also include any requests for variances from the advisory guidelines sentencing range, and may include a specific sentencing recommendation. All requests/motions for departures, or calculations or adjustments of Criminal History Category or any other matter affecting the calculation of the Advisory Sentencing Guidelines must be set forth in the “Position With Respect to Sentencing Factors,” and not be raised for the first time in the Sentencing Memorandum. The Court will consider those facts and factors set forth in the Presentence Report to which there is no dispute, facts and factors that were in dispute but resolved by the Court prior to sentencing, and the particular section 3553(a) factors that have been specifically identified by the parties as required in Paragraphs 1(A) and (B) of this Order, in arriving at an appropriate sentence. Pursuant to Fed. R. Civ. P. 32(e)(2), the Court will not disclose to any counsel or the Defendant the sentencing recommendation of the Probation Office. The Court will not utilize or rely on any fact not disclosed to all counsel and the Defendant in setting the sentence. B. A Joint Status Report stating whether an evidentiary hearing is needed on any matter that is relevant to sentencing, including departure motions and requests for variances from the guidelines. In deciding whether an evidentiary hearing is necessary, counsel need not take into account defendant’s allocution or statements by family members, friends and other persons speaking generally on behalf of the defendant in support of mitigation. If either counsel requests an evidentiary hearing, however, the Joint Status Report shall identify each witness who will be called, the party calling each such witness, the subject matter and brief summary of each witness’s testimony, and a good faith estimate of the time each witness will testify on direct and cross examination. 2. Any motions for downward or upward departures from the advisory guidelines sentence range or any matter related to calculation of the Criminal History Category must be set 2 forth in the “Position With Respect to Sentencing Factors” as set forth in Local Criminal Rules 32(C)(4). Failure to raise such issues in a timely manner may result in their denial. 3. As to defendants who are in custody, counsel is advised that any consultation with the defendant necessary in preparation for a scheduled Court proceeding shall occur prior to said proceeding in the office of the United States Marshal. The Court expects counsel to be prepared to proceed with the Court proceeding promptly at the scheduled time. It is counsel’s responsibility to arrive at the U.S. Marshal’s Office, sufficiently in advance of the Court proceeding, to provide adequate time for consultation and preparation. Counsel for the United States is responsible for obtaining any necessary writs for the appearance of the Defendant. As to Defendants not in custody, counsel for the United States shall advise the Court and counsel for the Defendant of the position of the United States in regard to custody issues post-sentencing at least twenty-four (24) hours in advance of the sentencing hearing. SO ORDERED this ___ day of __________, 20__. cc: All counsel of record United States District Judge 3

=== Sentencing Worksheet ===

SENTENCING HEARING OUTLINE JUDGE MARK R. HORNAK (October, 2017 rev.) DATE OF SENTENCING UNITED STATES v. DOCKET NUMBER COUNSEL FOR THE UNITED STATES COUNSEL FOR THE DEFENDANT SWEAR IN DEFENDANT AND PERFORM COMPETENCY COLLOQUOY, AND CONFIRM SATISFACTION WITH COUNSEL DATE OF PLEA/CONVICTION COUNTS/OFFENSE PLED TO/CONVICTED OF: ASK AUSA IF THERE ARE ANY IDENTIFIABLE VICTIMS, AND IF SO WHETHER NOTICE WAS GIVEN TO THEM, AND WHETHER ANY ARE PRESENT. DATE OF PRESENTENCE REPORT (“PSI”) DATE OF ADDENDUM TO PSI DATE(S) OF DEFENDANT’S POSITIONS STATEMENT(S) DATE(S) OF GOVERNMENT’S POSITION STATEMENT(S) DATE(S) OF COURT’S TENTATIVE FINDINGS CONFIRM THAT DEFENDANT AND COUNSEL HAVE REVIEWED EACH OF THESE DOCUMENTS. CONFIRM THAT COUNSEL FOR THE UNITED STATES HAS REVIEWED EACH OF THESE DOCUMENTS. CONFIRM ON THE RECORD THAT THE SENTENCING GUIDELINES IN AND OF THEMSELVES HAVE BEEN DECLARED TO BE ADVISORY TO THE COURT, AND ARE NO LONGER MANDATORY, AND THAT A SENTENCING COURT MAY NOT PRESUME, OR TAKE FOR GRANTED, THAT THE ADVISORY GUIDELINES RANGE, OR A PARTICULAR GUIDELINE SENTENCE IS REASONABLE IN A GIVEN CASE. THEREFORE, THE GUIDELINES ARE NOT ONLY NOT MANDATORY, THEY ARE NOT PRESUMED TO BE REASONABLE IN A GIVEN CASE. CONFIRM THAT THE COURT HAS REVIEWED THE COMPLETE FILE, INCLUDING AS APPLICABLE THE PSI AND ADDENDUM, EACH POSITION STATEMENT OF EACH PARTY, LETTERS OR OTHER MATERIALS SUBMITTED TO THE COURT IN AID OF SENTENCING, ANY VICTIM IMPACT STATEMENT, MATERIAL SUBMITTED IN CAMERA PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 32(i)(4), AND THE RECOMMENDATION OF THE PROBATION OFFICE. CONFIRM AND ORDER THAT PURSUANT TO FEDERAL RULE OF CRIMINAL PROCEDURE 32(e)(3), AND THE LOCAL RULES OF THIS COURT, SUCH RECOMMENDATION IS NOT DISCLOSED TO THE DEFENDANT, OR COUNSEL FOR THE DEFENDANT OR THE UNITED STATES, BUT THAT IN DETERMINING THE SENTENCE, THE COURT WILL NOT CONSIDER ANY FACTUAL OR LEGAL MATTER THAT HAS NOT BEEN DISCLOSED TO THE DEFENDANT AND ALL COUNSEL. ASK COUNSEL FOR DEFENDANT IF THERE ARE ANY MATTERS IN THE PSI OR ADDENDUM OR IN THE COURT’S TENTATIVE FINDINGS WITH WHICH THE DEFENDANT DISAGREES THAT HAVE NOT ALREADY BEEN CALLED TO THE COURT’S ATTENTION? (NOTE ANY CORRECTIONS PREVIOUSLY ADVANCED BY THE DEFENDANT OR THE GOVERNMENT) SAME QUESTION TO THE GOVERNMENT ASK IF THERE ARE ANY MATTERS REGARDING THE APPLICATION OF ANY PROVISIONS OF THE ADVISORY GUIDELINES, INCLUDING BUT NOT LIMITED TO ANY MOTIONS REGARDING ANY DEPARTURES, THAT THE COURT NEEDS TO ADDRESS WHICH WERE NOT RESOLVED WITHOUT OBJECTION BY THE PROBATION OFFICE. CONFIRM WHETHER THERE IS ANY APPLICABLE MANDATORY MINIMUM SENTENCE BY STATUTE IS THERE A PLEA AGREEMENT? 2 DOES COURT ACCEPT THE PLEA AGREEMENT? STIPULATIONS IN THE PLEA AGREEMENT ADOPT COURT’S TENTATIVE FINDINGS AS APPROPRIATE, AND THE FINDINGS OF THE PSI/ADDENDUM, SUBJECT TO THE COURT’S CORRECTIONS OR AMENDMENTS AS MADE ON OR IN THE RECORD, AND THE MATTERS TO BE RESOLVED AT THE SENTENCING HEARING. IF THERE IS A PLEA AGREEMENT -- CONFIRM THE APPEAL WAIVERS OF THE PLEA AGREEMENT, AND REVIEW ON THE RECORD: NO DIRECT APPEAL FROM CONVICTION OR SENTENCE, UNLESS (1) UNITED STATES APPEALS FROM THE SENTENCE; (2) IF THE SENTENCE EXCEEDS THE APPLICABLE STATUTORY LIMITS OR (3) IF THE SENTENCE UNREASONABLY EXCEEDS THE ADVISORY GUIDELINE RANGE AS DETERMINED BY THE COURT. (IN WHICH CASES THE DEFENDANT MAY APPEAL FROM THE SENTENCE.) ******ASK THE AUSA AND THE DEFENDANT’S COUNSEL IF THERE ARE ANY FURTHER POSITION STATEMENTS OR MOTIONS RELATIVE TO SENTENCING (FOR INSTANCE, FOR A DEPARTURE, AS TO §3E1.1 FOR ACCEPTANCE OF RESPONSIBILITY, OR DISMISSAL OF ONE OR MORE COUNTS OF THE INDICTMENT AFTER SENTENCING).****** ******RULE ON ANY MOTIONS OR REQUESTS FOR A DEPARTURE****** CALL ON COUNSEL FOR THE DEFENDANT TO MAKE ANY STATEMENTS OR PRESENTATIONS ON BEHALF OF THE DEFENDANT, TAKING TESTIMONY OR OTHER EVIDENCE AS APPROPRIATE, INCLUDING AS TO § 3553(a) FACTORS. CALL ON THE DEFENDANT PERSONALLY TO MAKE ANY STATEMENT TO THE COURT. CALL ON COUNSEL FOR THE GOVERNMENT FOR ANY POSITION, EVIDENCE OR ARGUMENT REGARDING SENTENCING. CALL ON ALL COUNSEL AS TO ANYTHING FURTHER PRIOR TO SENTENCING. ASK EACH COUNSEL IF THERE IS ANY REASON THAT SENTENCE MAY NOT BE PRONOUNCED. 3 REVIEW (AS NECESSARY) ADVISORY GUIDELINES CALCULATION: BASE OFFENSE LEVEL ADJUSTMENTS TO B.O.L. AND BASIS TOTAL OFFENSE LEVEL CRIMINAL HISTORY CATEGORY ZONE ADVISORY GUIDELINES: IMPRISONMENT PROBATION SUPERVISED RELEASE FINE RESTITUTION FORFEITURE SPECIAL ASSESSMENT PURSUANT TO 18 USC § 3013 RECITATION OF THE CONSIDERATION OF THE FACTORS PURSUANT TO 18 USC § 3553: 1. THE NATURE AND CIRCUMSTANCES OF THE OFFENSE AS SET FORTH IN THE PLEA HEARING RECORD, THE PSI AND THE ADDENDUM. 2. THE HISTORY AND CHARACTERISTICS OF THE DEFENDANT AS SET FORTH AT LENGTH IN THE PSI AND ADDENDUM, INCLUDING FAMILY AND PERSONAL DATA, PHYSICAL CONDITION, MENTAL AND EMOTIONAL HEALTH, EDUCATIONAL AND VOCATIONAL SKILLS AND EMPLOYMENT RECORD. 4 CONFIRM THAT THE COURT HAS CONSIDERED ALL LEGALLY PERMITTED EVIDENCE AS PRESENTED TO THE COURT, THE ARGUMENTS OF COUNSEL AND DEFENDANT’S STATEMENTS TO THE COURT. NOTE THAT IT IS THE OBLIGATION OF THE COURT TO FIX A SENTENCE THAT IS SUFFICIENT BUT NOT GREATER THAN NECESSARY TO COMPLY WITH THE PURPOSES OF SENTENCING, AND STATE HOW EACH APPLIES IN THIS CASE: TO REFLECT THE SERIOUSNESS OF THE OFFENSE TO PROMOTE RESPECT FOR THE LAW TO PROVIDE JUST AND SOUND PUNISHMENT FOR THE OFFENSE TO AFFORD ADEQUATE DETERRENCE TO CRIMINAL CONDUCT BY YOU, OR BY OTHERS IN SOCIETY CONSIDERATION OF THE NOW-ADVISORY SENTENCING GUIDELINES AND ANY APPLICABLE POLICY STATEMENTS AND SENTENCING FACTORS A CONSIDERATION OF THE TYPES AND KINDS OF SENTENCES THAT ARE AVAILABLE TO PROTECT THE PUBLIC FROM THE COMMISSION OF FURTHER CRIMES BY YOU TO PROVIDE ANY NEEDED EDUCATIONAL OR VOCATIONAL TRAINING, MEDICAL CARE OR OTHER CORRECTIONAL TREATMENT IN THE MOST EFFECTIVE MANNER. AVOIDANCE OF ANY UNDUE OR UNJUST DISPARITIES IN SENTENCING. CONSIDER AND RULE UPON ANY FURTHER SENTENCING ARGUMENTS MADE BY ANY PARTY AS TO THE APPLICATION OF THE §3553(a) FACTORS. NOTE THAT IT IS THE COURT’S FUNDAMENTAL OBLIGATION IS TO PROVIDE A SENTENCE THAT IS SUFFICIENT BUT NOT GREATER THAN NECESSARY, WHICH MEANS THAT THE COURT WILL SET A SENTENCE THAT IN THE COURT’S JUDGMENT FULLFILLS THE PURPOSES OF SENTENCING AS DESCRIBED, BUT WILL GO NOT FURTHER. ANY SENTENCE IMPOSED WILL RELATE SPECIFICALLY TO THE DEFENDANT AND THE DEFENDANT’S SITUATION. 5 (STATE ON THE RECORD THE COURT’S REASONING AND DETERMINATION AS TO THE SENTENCE TO BE IMPOSED): ITS 1. 2. 3. 4. 5. 6. ******THE COURT FINDS AND CONCLUDES THAT THE FOLLOWING SENTENCE IS APPROPRIATE AS BEING SUFFICIENT BUT NOT GREATER THAN NECESSARY TO FULFILL THE PURPOSES OF SENTENCING UNDER THE APPLICABLE LAW AND IN LIGHT OF THE SPECIFIC FACTS OF THIS CASE, PURSUANT TO THE SENTENCING REFORM ACT: YOU, , ARE HEREBY SENTENCED AS FOLLOWS: TO A TERM OF IMPRISONMENT OF MONTHS [OR, TO A TERM OF PROBATION OF FOLLOWING CONDITIONS: MONTHS WITH THE ] FINE: (IF INVESTIGATION SHOWS INABILITY TO PAY, WAIVE FINE) RESTITUTION: FORFEITURE: MANDATORY SPECIAL ASSESSMENT: SUPERVISED RELEASE: 6 ******STATE STANDARD CONDITIONS OF PROBATION OR SUPERVISED RELEASE, AND THEN REVIEW SPECIAL CONDITIONS TO BE IMPOSED AND BASIS FOR IMPOSITION. ADVISE THAT ANY VIOLATIONS OF A CONDITION WILL BE BROUGHT TO THE COURT’S ATTENTION, AND MAY LEAD TO A REVOCATION. MAKE FINAL § 3553(a) FINDINGS: THE SENTENCE IMPOSED IS SUFFICIENT BUT NOT GREATER THAN NECESSARY, CONFORMS TO THE STATUTORY REQUIREMENTS AND THE ADVISORY GUIDELINES, AVOIDS UNWARRANTED SENTENCING DISPARITIES, REFLECTS THE SERIOUSNESS OF THE OFFENSE, PROMOTES RESPECT FOR THE LAW, PROVIDES JUST AND SOUND PUNISHMENT FOR THE OFFENSE, AND AFFORDS ADEQUATE DETERRENCE TO CRIMINAL CONDUCT. *******ASK ALL COUNSEL IF THERE ARE ANY OBJECTIONS TO THE PROCEDURAL REASONABLENESS OF THE SENTENCE AS IMPOSED. ASK COUNSEL AND THE PROBATION OFFICER IF THERE IS ANY NEED TO CLARIFY OR AMEND ANYTHING IN THE COURT’S ORAL STATEMENT OF SENTENCE.******** REVIEW APPEAL RIGHTS: YOU HAVE THE RIGHT TO APPEAL FROM THE ORDERS OF THIS COURT, THE JUDGMENT OF GUILT AND SENTENCE IMPOSED BY THE COURT. THOSE RIGHTS MAY BE LIMITED BY ANY AGREEMENT YOU HAVE MADE UNDER A PLEA AGREEMENT TO WAIVE OR LIMIT SUCH APPEAL RIGHTS. YOU HAVE THE RIGHT TO BE REPRESENTED BY A LAWYER IN ANY SUCH APPEAL. IF YOU CANNOT AFFORD A LAWYER, ONE WILL BE APPOINTED FOR YOU AT NO COST TO YOU. DO YOU UNDERSTAND THAT? IF YOU CANNOT AFFORD TO PAY THE FILING FEES FOR AN APPEAL, THE COURT WILL WAIVE THOSE FILING FEES. DO YOU UNDERSTAND THAT? IF YOU CANNOT AFFORD CERTIFIED COPIES OF NECESSARY COURT RECORDS AND TRANSCRIPTS FOR AN APPEAL, THEY WILL BE FURNISHED TO YOU AT THE EXPENSE OF THE GOVERNMENT. DO YOU UNDERSTAND THAT? IF YOU DO WANT TO APPEAL, YOU MUST DO SO, THAT IS APPEAL, WITHIN 14 DAYS OF TODAY. IF YOU DO NOT SO APPEAL WITHIN 14 DAYS OF TODAY, YOU WILL LOSE YOUR RIGHT TO APPEAL. DO YOU UNDERSTAND THAT? 7 IF YOU SO REQUEST, THE CLERK OF THIS COURT WILL PREPARE AND FILE A NOTICE OF APPEAL ON YOUR BEHALF. ASK COUNSEL IF ANY OTHER MATTERS TO COME BEFORE THE COURT. CUSTODY MATTERS -- EITHER CONFIRM CONTINUATION OF BOND ON ALL EXISTING (OR OTHER) TERMS, PENDING SELF-REPORT. IF SO, ADVISE DEFENDANT TO REPORT TO U.S. MARSHAL’S OFFICE ON THE SECOND FLOOR OF THIS BUILDING NO LATER THAN NOON ON UNLESS THE DEFENDANT HAS ON A SOONER DATE BEEN DIRECTED BY THE BUREAU OF PRISIONS WHEN AND WHERE TO REPORT, IN WHICH CASE DEFENDANT IS TO FOLLOW SUCH DIRECTIONS. , OR REVOKE THE BOND AND REMAND TO THE CUSTODY OF THE UNITED STATES MARSHAL. SENTENCING IS CONCLUDED AND COURT IS ADJOURNED. 8

=== Change of Plea Colloquy ===

September, 2021 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, v. XXXXXXXXXXXXXXXXX, Criminal No. XX-cr-XXXXX THIS IS THE TIME SET FOR THE CHANGE OF PLEA IN THE CASE OF UNITED STATES v. ________________________________ __________, _________________, __:__ _M ---------------------------------------------------------------------------------------------------- AUSA: _______________________________ DEFENSE COUNSEL: _______________________________ ---------------------------------------------------------------------------------------------------- CHANGE OF PLEA COLLOQUY 1. DEFENDANT, THE COURT IS INFORMED THAT YOU WISH TO PLEAD GUILTY TO COUNT(S) ___ OF THE INDICTMENT IN THIS MATTER. IS THAT CORRECT? MR. BABIK, PLEASE ADMINISTER THE OATH TO THE DEFENDANT. 2. BEFORE ACCEPTING YOUR GUILTY PLEA, THERE ARE A NUMBER OF QUESTIONS I WILL ASK YOU TO ASSURE THAT IT IS A VALID PLEA. IF YOU DO NOT HEAR OR UNDERSTAND ANY OF THE QUESTIONS, TELL ME, AND I WILL REPEAT OR EXPLAIN THE QUESTION TO YOU; OR IF AT ANY TIME YOU WISH TO CONSULT WITH YOUR ATTORNEY, PLEASE TELL ME IMMEDIATELY, AND I WILL PROVIDE YOU TIME TO CONSULT WITH YOUR ATTORNEY IN A PRIVATE SETTING. I GIVE YOU THESE INSTRUCTIONS BECAUSE IT IS ESSENTIAL TO A VALID PLEA THAT YOU UNDERSTAND EACH QUESTION BEFORE YOU ANSWER. 3. DO YOU UNDERSTAND THAT HAVING PROMISED UNDER OATH TO TELL THE TRUTH, YOUR ANSWERS TO MY QUESTIONS ARE SUBJECT TO THE PENALTIES FOR PERJURY OR FOR MAKING A FALSE STATEMENT IF YOU DO NOT ANSWER TRUTHFULLY? 4. 5. 6. 7. PLEASE STATE YOUR FULL NAME FOR THE RECORD. DEFENDANT, HOW OLD ARE YOU? HOW FAR DID YOU GO IN SCHOOL? HAVE YOU BEEN ABLE TO COMMUNICATE WITH YOUR LAWYER WITHOUT ANY PROBLEM? DO YOU HAVE ANY DIFFICULTY IN SPEAKING, HEARING OR UNDERSTANDING THE ENGLISH LANGUAGE? 8. DEFENSE COUNSEL, HAVE YOU BEEN ABLE TO COMMUNICATE WITH YOUR CLIENT WITHOUT ANY PROBLEM? 9. DEFENDANT, HAVE YOU TAKEN ANY PRESCRIBED OR NON-PRESCRIBED MEDICINE OR DRUGS OR CONSUMED ANY ALCOHOL IN THE PAST 24 HOURS? 10. ARE YOU NOW, OR HAVE YOU RECENTLY BEEN, UNDER THE CARE OF A DOCTOR OR OTHER HEALTH CARE PERSON? 11. ARE YOU NOW, OR HAVE YOU RECENTLY BEEN, UNDER THE CARE OF A PSYCHIATRIST, PSYCHOLOGIST, COUNSELOR OR THERAPIST? 12. ARE YOU NOW, OR HAVE YOU RECENTLY BEEN, HOSPITALIZED OR TREATED FOR NARCOTIC OR DRUG ADDICTION OR ABUSE? 2 13. DEFENDANT, DO YOU UNDERSTAND WHAT IS HAPPENING HERE TODAY? ARE YOU HAVING ANY PROBLEMS THINKING CLEARLY? 14. AUSA, DO YOU HAVE ANY DOUBT AS TO THE DEFENDANT'S COMPETENCE TO PARTICIPATE IN THESE PROCEEDINGS OR TO PLEAD GUILTY IF (S)HE SO ELECTS? 15. DEFENSE COUNSEL, DO YOU HAVE ANY DOUBT AS TO THE DEFENDANT'S COMPETENCE TO PARTICIPATE IN THESE PROCEEDINGS OR TO PLEAD GUILTY IF (S)HE SO ELECTS? (Judge): BASED ON THE ANSWERS PROVIDED BY DEFENDANT, HIS LAWYER, AND THE ATTORNEY FOR THE UNITED STATES, THE COURT FINDS THE DEFENDANT TO BE COMPETENT. 16. DEFENDANT, DO YOU HAVE A LAWYER HERE WITH YOU TODAY? THAT LAWYER IS DEFENSE COUNSEL, CORRECT? 17. HAVE YOU HAD ENOUGH OPPORTUNITY AND SUFFICIENT TIME TO DISCUSS YOUR CASE AND THIS PROCEEDING WITH YOUR LAWYER? HAS YOUR LAWYER ANSWERED ALL OF YOUR QUESTIONS TO YOUR SATISFACTION? 18. ARE YOU SATISFIED WITH THE JOB HE/SHE HAS DONE FOR YOU? 19. HAVE YOU BEEN FURNISHED WITH A COPY OF THE CHARGE AGAINST YOU, DEFENDANT? HAVE YOU DISCUSSED WITH YOUR LAWYER THE CHARGE IN COUNT(S) _____ OF THE INDICTMENT, WHICH IS/ARE THE CHARGE(S) TO WHICH YOU INTEND TO PLEAD GUILTY? 20. DO YOU UNDERSTAND THAT YOU ARE CHARGED WITH A FELONY/MISDEMEANOR, NAMELY _______________________________________. 3 21. DO YOU UNDERSTAND THIS CHARGE AND HAS IT BEEN EXPLAINED TO YOU BY YOUR LAWYER? HAS YOUR LAWYER ANSWERED ANY QUESTIONS YOU HAVE TO YOUR SATISFACTION? 21(A) (COLLOQUY ON CONSENT TO PROCEED BY VIDEO, AND FOR NECESSITY OF VIDEO, IF APPLICABLE.) (Judge): THE COURT IS NOW READY TO CONSIDER YOUR STATED INTENT TO PLEAD GUILTY TO COUNT(S) ___ OF THE INDICTMENT. 22. DEFENDANT, DO YOU UNDERSTAND THAT IF YOU WOULD PLEAD NOT GUILTY, YOU WOULD HAVE A RIGHT TO STICK WITH THAT NOT GUILITY PLEA, AND TO BE ASSISTED BY A LAWYER AT THE TRIAL AND IN ALL OTHER PHASES OF THE PROCESSING OF THIS CHARGE? 23. DO YOU ALSO UNDERSTAND THAT IF YOU QUALIFY FINANCIALLY, YOU ARE ENTITLED TO BE ASSISTED BY A LAWYER AT NO COST TO YOU AT ALL PHASES OF THE PROCESSING OF THE CHARGES AGAINST YOU? 24. DO YOU UNDERSTAND THAT UNDER THE CONSTITUTION AND THE LAWS OF THE UNITED STATES, YOU ARE ENTITLED TO A SPEEDY TRIAL BY A JUDGE AND JURY ON THE CHARGES AGAINST YOU? 25. DO YOU UNDERSTAND THAT AT THE TRIAL, YOU WOULD BE PRESUMED TO BE INNOCENT? DO YOU ALSO UNDERSTAND THAT AT THE TRIAL, YOU WOULD NOT HAVE TO PROVE THAT YOU WERE INNOCENT; THE GOVERNMENT HAS TO PROVE YOUR GUILT BY COMPETENT EVIDENCE AND BEYOND A REASONABLE DOUBT BEFORE YOU COULD BE FOUND GUILTY? 4 26. DO YOU UNDERSTAND THAT AT THE TRIAL, THE JURY HAS TO BE UNANIMOUS IN ORDER TO FIND YOU GUILTY ON ANY CHARGE AGAINST YOU? 27. DO YOU UNDERSTAND THAT YOU WOULD HAVE THE RIGHT TO PARTICIPATE WITH YOUR LAWYER IN THE SELECTION OF THE JURY AND THAT YOU WOULD HAVE THE RIGHT TO STRIKE OR ELIMINATE ANY PROSPECTIVE JUROR IF IT WAS SHOWN THAT THAT JUROR WAS UNABLE TO RENDER A FAIR AND IMPARTIAL VERDICT? DO YOU ALSO UNDERSTAND THAT ON TOP OF THAT, YOU WOULD HAVE THE RIGHT TO STRIKE OR ELIMINATE TEN (10) PROSPECTIVE JURORS WITHOUT GIVING ANY REASON AT ALL? 28. DO YOU UNDERSTAND THAT IN THE COURSE OF THE TRIAL, THE WITNESSES FOR THE GOVERNMENT WOULD HAVE TO COME IN TO COURT AND TESTIFY IN YOUR PRESENCE? 29. DO YOU ALSO UNDERSTAND THAT IN THE COURSE OF TRIAL, YOUR ATTORNEY COULD CROSS-EXAMINE (THAT MEANS QUESTION) THE WITNESSES FOR THE GOVERNMENT, OBJECT TO OR SEEK TO SUPPRESS OR EXCLUDE ANY EVIDENCE (INCLUDING STATEMENTS BY YOU OR OTHERS) OFFERED BY THE GOVERNMENT, OFFER WITNESSES AND EVIDENCE ON YOUR BEHALF AND REQUIRE THE ATTENDANCE OF WITNESSES BY ISSUING SUBPOENAS? 30. DEFENDANT, DO YOU UNDERSTAND THAT IN THE COURSE OF THE TRIAL THAT IF YOU QUALIFY AS BEING FINANCIALLY UNABLE TO PAY WITNESS FEES TO WITNESSES YOU WISH TO CALL ON YOUR BEHALF, THE GOVERNMENT WOULD PAY THOSE WITNESS FEES? 5 31. DO YOU ALSO UNDERSTAND THAT AT A TRIAL, YOU WOULD HAVE THE RIGHT TO TESTIFY IF YOU CHOSE TO DO SO? 32. DO YOU UNDERSTAND THAT AT A TRIAL, YOU ALSO WOULD HAVE THE RIGHT NOT TO TESTIFY AND NO INFERENCE OR SUGGESTION OF GUILT COULD BE DRAWN FROM THE FACT THAT YOU DID NOT TESTIFY? 33. DEFENDANT, IF YOU PLEAD GUILTY AND THE COURT ACCEPTS YOUR PLEA, DO YOU UNDERSTAND THAT YOU WILL WAIVE (THAT MEANS GIVE UP) YOUR RIGHT TO A TRIAL, AND ALL OF THE OTHER RIGHTS I HAVE JUST DISCUSSED, THERE WILL BE NO TRIAL, AND THE COURT WILL ENTER A JUDGMENT OF GUILT AND THEN SENTENCE YOU AT A LATER DATE ON THE BASIS OF YOUR GUILTY PLEA AFTER CONSIDERING A PRE-SENTENCE REPORT? 34. DO YOU UNDERSTAND THAT IF YOU PLEAD GUILTY YOU WILL ALSO HAVE TO WAIVE (THAT MEANS GIVE UP) YOUR RIGHT NOT TO INCRIMINATE YOURSELF, SINCE I MAY ASK YOU QUESTIONS ABOUT WHAT YOU DID IN ORDER TO SATISFY THE COURT THAT YOU ARE GUILTY AS CHARGED AND YOU WILL HAVE TO ADMIT TO YOUR GUILT? 35. HAVING DISCUSSED ALL OF THESE RIGHTS WITH YOU, DO YOU STILL WANT TO PLEAD GUILTY? 36. DO YOU UNDERSTAND THAT THE SENTENCING GUIDELINES SET FORTH BY THE UNITED STATES SENTENCING COMMISSION IN AND OF THEMSELVES WOULD ONLY BE ADVISORY TO THE COURT? THEREFORE, FOR GOOD REASON, THE COURT COULD SENTENCE YOU OUTSIDE OF THE RECOMMENDED GUIDELINE 6 RANGE BUT WITHIN THE APPLICABLE STATUTORY MINIMUM AND/OR MAXIMUM PENALTIES. DO YOU ALSO UNDERSTAND THAT THE COURT WILL NOT BE ABLE TO DETERMINE THE ADVISORY GUIDELINES FOR YOUR CASE UNTIL AFTER THE PRE- SENTENCE REPORT HAS BEEN COMPLETED AND YOU AND THE GOVERNMENT HAVE HAD AN OPPORTUNITY TO CHALLENGE THE FACTS REPORTED BY THE PROBATION OFFICER? DO YOU UNDERSTAND THAT UNDER THE SENTENCING REFORM ACT, PAROLE HAS BEEN ABOLISHED, AND THAT IF YOU ARE SENTENCED TO PRISON, YOU WILL NOT BE ELIGIBLE FOR PAROLE? DO YOU UNDERSTAND THAT IF THE SENTENCE IMPOSED IS MORE SERIOUS OR SEVERE THAN YOU MIGHT HAVE EXPECTED, YOU WILL STILL BE BOUND BY YOUR PLEA AND WILL HAVE NO RIGHT TO WITHDRAW IT ON THAT BASIS? DO YOU UNDERSTAND THAT IN DETERMINING YOUR SENTENCE, THE COURT WILL BE OBLIGATED TO CALCULATE THE APPLICABLE SENTENCING GUIDELINE RANGE AND TO CONSIDER THAT RANGE, POSSIBLE DEPARTURES FROM IT UNDER THE SENTENCING GUIDELINES, AND ALL OF THE OTHER SENTENCING FACTORS UNDER TITLE 18, UNITED STATES CODE, SECTION 3553(a)? AT THIS TIME, THE COURT WILL ADVISE YOU CONCERNING THE MINIMUM AND MAXIMUM SENTENCES PROVIDED BY LAW. 37. A. DO YOU UNDERSTAND THAT THE MINIMUM/MAXIMUM SENTENCE TO COUNT(S) __ IS ______________________________________________? 7 B. DO YOU UNDERSTAND THAT IF THIS WOULD BE A SECOND OR SUBSEQUENT FELONY/MISDEMEANOR ______________ CONVICTION THAT IS FINAL, WHETHER TO A FEDERAL, STATE OR FOREIGN CHARGE, THE MINIMUM/MAXIMUM TERM OF IMPRISONMENT WOULD THEN BE _______ YEARS, THE MINIMUM/MAXIMUM FINE $_______, AND THE MINIMUM/MAXIMUM TERM OF SUPERVISED RELEASE WOULD BE _______ YEARS? C. DO YOU UNDERSTAND THAT IF THIS COURT WERE TO SENTENCE YOU TO ANY TERM OF IMPRISONMENT, THE COURT MAY ALSO IMPOSE A TERM OF SUPERVISED RELEASE OF NOT MORE THAN AT LEAST ____ YEARS? D. DO YOU UNDERSTAND THAT IF YOU WERE TO VIOLATE THE TERMS OF THE SUPERVISED RELEASE, THE COURT COULD REVOKE THE SUPERVISED RELEASE, YOU COULD BE SENT BACK TO PRISON, AND NO CREDIT WOULD BE GIVEN FOR THE TIME YOU PREVIOUSLY HAD SERVED ON THE TERM OF SUPERVISED RELEASE? E. IT IS THE COURT’S UNDERSTANDING THAT FORFEITURE IS/IS NOT AN ISSUE IN THIS CASE. IS THAT CORRECT? F. IT IS THE COURT’S UNDERSTANDING THAT RESTITUTION IS/IS NOT AN ISSUE IN THIS CASE. IS THAT CORRECT? G. DO YOU UNDERSTAND THAT THE SENTENCE IMPOSED WILL INCLUDE A SPECIAL ASSESSMENT OF $100.00/$25.00 PER COUNT OF CONVICTION PURSUANT TO TITLE 18, UNITED STATES CODE, SECTION 3013? 38. DO YOU UNDERSTAND THAT THE OFFENSE(S) TO WHICH YOU ARE PLEADING GUILTY IS/ARE A FELONY OFFENSE(S); THAT IF YOUR PLEA IS ACCEPTED, YOU WILL BE JUDGED GUILTY OF THE OFFENSE; AND THAT SUCH JUDGMENT MAY 8 DEPRIVE YOU OF VALUABLE RIGHTS, SUCH AS THE RIGHT TO VOTE, THE RIGHT TO CERTAIN EMPLOYMENT OPPORTUNITIES, THE RIGHT TO HOLD PUBLIC OFFICE, THE RIGHT TO SERVE ON A JURY, THE RIGHT TO RECEIVE CERTAIN GOVERNMENT BENEFITS, AND THE RIGHT TO POSSESS ANY KIND OF FIREARM OR AMMUNITION? ARE YOU A CITIZEN OF THE UNITED STATES? WHERE WERE YOU BORN? YOU MUST UNDERSTAND THAT IF YOU WERE NOT A CITIZEN, YOUR GUILTY PLEA COULD NEGATIVELY AFFECT YOUR IMMIGRATION STATUS, OR LEAD TO ITS REVOCATION, COULD RESULT IN A DENIAL OF CITIZENSHIP, AND/OR DEPORTATION, REMOVAL OR EXCLUSION FROM THE UNITED STATES? 39. DO YOU UNDERSTAND THAT YOUR GUILTY PLEA MIGHT HAVE A NEGATIVE IMPACT ON ANY PROBATION OR PAROLE THAT YOU MAY NOW BE SERVING? 40. DO YOU UNDERSTAND THAT THIS COURT MAY OR MAY NOT APPROVE ANY PLEA AGREEMENT WHICH YOU MIGHT ENTER INTO AND THAT YOU HAVE A DUTY TO DISCLOSE ANY SUCH AGREEMENT. IF YOU DO NOT DISCLOSE THE AGREEMENT NOW, YOU MAY NOT LATER ASSERT THE EXISTENCE OF ANY PLEA NEGOTIATION OR AGREEMENT. IS THERE A PLEA AGREEMENT IN THIS CASE? (IF NO, PROCEED TO NO. 42B) 41. THE COURT HAS BEEN INFORMED THAT THERE HAS BEEN A PLEA AGREEMENT ENTERED INTO BETWEEN YOU AND YOUR LAWYER AND THE LAWYER FOR THE UNITED STATES. IS THAT CORRECT? (If yes): DEFENSE ATTORNEY, PLEASE SHOW THE DEFENDANT A COPY OF THE PLEA AGREEMENT LETTER. 9 - DEFENDANT, HAVE YOU SEEN THIS LETTER BEFORE? - HAVE YOU READ IT YOURSELF IN ITS ENTIRETY? - HAS YOUR LAWYER REVIEWED IT WITH YOU? - DID YOU SIGN THE LAST PAGE OF THAT LETTER? - AND, BY SIGNING THAT, DID YOU AGREE TO ALL OF THE TERMS SET FORTH IN THAT LETTER? - AUSA, BEFORE WE GO TO SIDEBAR, PLEASE REVIEW THE ESSENTIAL TERMS OF THE PLEA AGREEMENT FOR THE COURT AND FOR THE DEFENDANT. DEFENSE COUNSEL, DO YOU AGREE THAT THE ESSENTIAL TERMS OF THE PLEA AGREEMENT HAVE BEEN CORRECTLY STATED? DEFENDANT, HAVE YOU HEARD THE TERMS OF THE PLEA AGREEMENT AS REVIEWED FOR YOU BY AUSA? DEFENDANT, HAS THE ATTORNEY FOR THE UNITED STATES GOVERNMENT CORRECTLY STATED THE PLEA AGREEMENT AS YOU UNDERSTAND IT? DEFENDANT, DOES THE PLEA AGREEMENT SET FORTH YOUR ENTIRE UNDERSTANDING AND AGREEMENT WITH THE GOVERNMENT CONCERNING THE CHARGE PENDING AGAINST YOU? DO YOU HAVE ANY OTHER AGREEMENT OR UNDERSTANDING WITH THE UNITED STATES GOVERNMENT CONCERNING THE CHARGE PENDING AGAINST YOU THAT IS NOT SET FORTH IN THE PLEA AGREEMENT? [IF APPLICABLE: DEFENDANT, DO YOU UNDERSTAND THAT ORDINARILY YOU OR THE GOVERNMENT MAY HAVE THE RIGHT TO APPEAL ANY SENTENCE THE 10 COURT IMPOSES; HOWEVER, THE COURT NOTES THAT IN THE PROVISIONS OF THE PLEA AGREEMENT, YOU AND THE GOVERNMENT AGREED THAT YOU WOULD WAIVE, THAT IS, GIVE UP, YOUR RIGHT TO TAKE A DIRECT APPEAL FROM YOUR GUILTY PLEA, CONVICTION OR SENTENCE SUBJECT TO THE FOLLOWING EXCEPTIONS: (1) IF THE UNITED STATES APPEALS FROM THE SENTENCE, YOU MAY TAKE A DIRECT APPEAL FROM THE SENTENCE. DO YOU UNDERSTAND THAT? (2) YOU MAY ALSO TAKE A DIRECT APPEAL FROM THE SENTENCE ONLY ON THE FOLLOWING GROUNDS: (A) THE SENTENCE EXCEEDS THE APPLICABLE STATUTORY LIMITS SET FORTH IN FEDERAL LAW, OR (B) THE SENTENCE IMPOSED UNREASONABLY EXCEEDS THE GUIDELINE RANGE DETERMINED BY THE COURT UNDER THE SENTENCING GUIDELINES. DO YOU UNDERSTAND THAT? TO REPEAT, BY THESE PROVISIONS OF THE PLEA AGREEMENT, YOU ARE GIVING UP THE RIGHT TO APPEAL BOTH THE VALIDITY OF YOUR PLEA OF GUILTY AND CONVICTION AND EXCEPT AS SPECIFICALLY SET FORTH IN THE PLEA AGREEMENT, YOUR SENTENCE. DO YOU UNDERSTAND THAT?] 42A. FEDERAL RULE OF CRIMINAL PROCEDURE 11 PROVIDES IN RELEVANT PART THAT WHEN A PLEA AGREEMENT STATES THAT AN ATTORNEY FOR THE GOVERNMENT WILL MOVE TO DISMISS CERTAIN CHARGES, OR WILL AGREE THAT A SPECIFIC SENTENCE OR SENTENCING RANGE IS THE APPROPRIATE OUTCOME OF THE CASE, OR THAT A PARTICULAR PART OF THE SENTENCING GUIDELINES, OR 11 POLICY STATEMENTS, OR SENTENCING FACTORS DO OR DO NOT APPLY, THE COURT MAY ACCEPT THE PLEA AGREEMENT, REJECT IT, OR DEFER A DECISION UNTIL THE COURT HAS REVIEWED THE PRE-SENTENCE REPORT. 42B. I WILL REFER THIS MATTER TO THE PROBATION OFFICE FOR THE PREPARATION OF A PRE-SENTENCE INVESTIGATION REPORT AND RECOMMENDATION. YOU WILL BE INTEREVIEWED BY THE PROBATION OFFICE AND THE COURT WILL REVIEW THE REPORT IN ORDER TO DETERMINE AN APPROPRIATE SENTENCE IN YOUR CASE. ARE YOU WILLING TO BE INTERVIEWED BY THE PROBATION OFFICE AND HAVE ME REVIEW THAT REPORT PRIOR TO DETERMINING YOUR SENTENCE? [ONLY IF PLEA AGREEMENT. THE COURT WILL DEFER ITS DECISION ON ACCEPTANCE OF THE PLEA AGREEMENT UNTIL IT HAS REVIEWED THE PRE- SENTENCE REPORT AND ADDENDUM THERETO THAT WILL BE PREPARED BY THE PROBATION OFFICER. DEFENDANT, DO YOU UNDERSTAND THAT AFTER REVIEWING THE PRE- SENTENCE INVESTIGATION REPORT AND ANY ADDENDUM THERETO, THIS COURT MAY ACCEPT OR REJECT THE PLEA AGREEMENT IN THIS CASE? DO YOU UNDERSTAND THAT IF THIS COURT, AFTER REVIEWING THE PRE- SENTENCE INVESTIGATION REPORT AND ADDENDUM WERE TO REJECT THE PLEA AGREEMENT, THIS COURT WILL NOT BE REQUIRED TO FOLLOW THE PLEA AGREEMENT AND YOU WILL BE GIVEN AN OPPORTUNITY TO WITHDRAW YOUR PLEA AND PROCEED TO A TRIAL ON THE CHARGE CONTAINED IN THE INDICTMENT AT CRIMINAL NO. _____________? 12 DO YOU UNDERSTAND THAT IF THIS COURT REJECTS THE PLEA AGREEMENT AND YOU STICK WITH YOUR GUILTY PLEA, THE COURT MAY DISPOSE OF THIS CASE IN A MANNER LESS FAVORABLE TO YOU THAN THE TERMS SET FORTH IN THE PLEA AGREEMENT?] 42C. YOU MUST UNDERSTAND THAT ANY RECOMMENDATION OF SENTENCE WHICH MAY BE MADE OR AGREED TO BY YOUR LAWYER AND/OR MADE BY THE PROSECUTION, OR ANY AGREEMENT NOT TO OPPOSE YOUR LAWYER’S REQUESTED SENTENCE IS NOT BINDING ON THE COURT AND THAT YOU COULD, ON THE BASIS OF YOUR GUILTY PLEA, RECEIVE UP TO THE MAXIMUM SENTENCE PERMITTED BY LAW? DO YOU UNDERSTAND THAT IF I DON’T IMPOSE A SENTENCE RECOMMENDED BY THE PROSECUTOR OR RECOMMENDED BY YOUR LAWYER AND IMPOSE A MORE SERIOUS OR SEVERE SENTENCE, YOU WILL NOT, ON THAT BASIS, BE ENTITLED TO WITHDRAW YOUR GUILTY PLEA? 42D. THE ATTORNEY FOR THE GOVERNMENT WILL NOW PROVIDE THE PLEA AGREEMENT TO MY DEPUTY. [COLLOQUY REGARDING SIGNATURES] 43. AUSA, [OTHER THAN THE PLEA AGREEMENT THAT HAS BEEN PRESENTED HERE TODAY,] DID THE GOVERNMENT TENDER TO COUNSEL FOR THE DEFENDANT ANY [OTHER] FORMAL PLEA AGREEMENT OFFER? 44. DEFENSE COUNSEL, DID YOU RECEIVE ANY FORMAL PLEA AGREEMENT OFFER FROM THE GOVERNMENT THAT YOU DID NOT COMMUNICATE TO THE DEFENDANT? 13 45. HAS ANYONE MADE A THREAT TO YOU OR ANYONE ELSE THAT HAS FORCED YOU TO WAIVE OR GIVE UP ANY OF THE RIGHTS WE HAVE TALKED ABOUT TODAY? 46. HAS ANYONE MADE ANY PROMISE TO YOU OTHER THAN THE PROMISES MADE IN THE PLEA AGREEMENT THAT HAS CAUSED YOU TO WAIVE OR GIVE UP ANY OF THE RIGHTS WE HAVE TALKED ABOUT TODAY? 47. DEFENDANT, HAS ANYONE MADE A THREAT TO YOU OR TO ANYONE ELSE THAT IS CAUSING YOU TO PLEAD GUILTY? IF YES, WHAT WAS THE THREAT AND WHO MADE IT? 48. DEFENDANT, HAS ANYONE MADE ANY PROMISE (OTHER THAN THOSE IN THE PLEA AGREEMENT) THAT IS CAUSING YOU TO PLEAD GUILTY? (If yes): WHAT WAS THAT PROMISE AND WHO MADE IT? 49. HAS ANYONE MADE ANY PREDICTION OR PROMISE TO YOU AS TO WHAT YOUR ACTUAL SENTENCE WILL BE OTHER THAN WHAT YOU HAVE BEEN TOLD ABOUT THE MINIMUM OR MAXIMUM POSSIBLE SENTENCE? (IF YES): WHAT WAS IT AND WHO MADE IT? 50. HAS ANYTHING I HAVE SAID HERE TODAY, OTHER THAN WHAT I HAVE TOLD YOU ABOUT THE MINIMUM OR MAXIMUM SENTENCE, SUGGESTED TO YOU WHAT YOUR ACTUAL SENTENCE WILL BE? 51. HAVE YOU BEEN INSTRUCTED BY YOUR LAWYER, THE LAWYER FOR THE GOVERNMENT, OR ANYONE ELSE TO RESPOND UNTRUTHFULLY TO ANY QUESTION I HAVE ASKED YOU? 14 HAVE YOU, IN FACT, ANSWERED TRUTHFULLY TO ALL OF THE QUESTIONS I HAVE ASKED YOU TODAY? DEFENDANT, DO YOU HAVE ANY PHYSICAL, EMOTIONAL OR MENTAL ILLNESS OR CONDITION WHICH YOU THINK COULD OR MIGHT AFFECT YOUR ABILITY TO UNDERSTAND ANYTHING THAT WE HAVE TALKED ABOUT TODAY? HAVE YOU UNDERSTOOD EVERYTHING WE’VE TALKED ABOUT TODAY? 52. AUSA, WHAT IN SUMMARY WOULD BE THE GOVERNMENT'S EVIDENCE AS TO THIS CHARGE, AND THE ELEMENTS OF THE OFFENSE CHARGED WHICH THE GOVERNMENT MUST PROVE AT TRIAL? DEFENDANT, IN A MOMENT, I INTEND TO ASK YOU WHETHER YOU AGREE WITH THE GOVERNMENT’S SUMMARY OF WHAT YOU DID. BUT BEFORE I ASK YOU, I MUST ADVISE YOU THAT YOUR ANSWERS MAY LATER BE USED AGAINST YOU IN A PROSECUTION FOR PERJURY OR MAKING A FALSE STATEMENT IF YOU DO NOT ANSWER TRUTHFULLY. 53. DEFENDANT, DO YOU AGREE WITH THE PROSECUTION'S SUMMARY OF WHAT YOU DID? (If no): WITH WHAT DO YOU DISAGREE? 54. ARE THERE ANY ADDITIONS OR CORRECTIONS YOU WISH TO MAKE? 55. DO YOU STILL WISH TO PLEAD GUILTY TO ________________? IS THAT BECAUSE YOU ARE GUILTY OF ________________? 56. DEFENSE COUNSEL, IS THIS CONSISTENT WITH YOUR ADVICE? 15 57. MR. /MS. [DEFENDANT], ARE YOU SATISFIED IN ALL RESPECTS WITH THE ADVICE AND REPRESTENTATION OF WHICH YOUR LAWYER, DEFENSE COUNSEL, HAS PROVIDED TO YOU? 58. DEFENDANT, DID YOU _______________________________ _____________________________, AS SET FORTH IN COUNT(S) ___ OF THE INDICTMENT FILED AT CRIMINAL NO. _______, WHICH I SUMMARIZED FOR YOU A FEW MINUTES AGO? HOW DO YOU PLEAD TO THAT CHARGE? THE COURT FINDS THAT THE DEFENDANT IS COMPETENT, THAT HE/SHE KNOWS AND UNDERSTANDS HIS/HER RIGHTS TO A JURY TRIAL AND WHAT IT MEANS TO GIVE UP THOSE RIGHTS, THAT HE/SHE KNOWS WHAT THE MINIMUM AND MAXIMUM PENALTIES ARE, THAT SHE/HE UNDERSTANDS THE PROVISIONS OF HER/HIS PLEA AGREEMENT AND HAS AGREED TO THEM, THAT THERE IS A FACTUAL BASIS FOR THE PLEA, AND THAT HE/SHE IS ENTERING IT KNOWINGLY AND VOLUNTARILY. THE COURT THEREFORE ACCEPTS THE DEFENDANT’S GUILTY PLEA TO ________________ AND HEREBY ADJUDGES [FULL NAME OF DEFENDANT] GUILTY OF THE CRIME SET FORTH IN COUNT ____ OF THE REFERENCED CRIMINAL INDICTMENT. DEFENDANT, SINCE YOU ACKNOWLEDGE THAT YOU ARE IN FACT GUILTY AS CHARGED IN COUNT(S) ___ OF THE INDICTMENT, SINCE YOU KNOW YOUR RIGHT TO A TRIAL, SINCE YOU KNOW WHAT THE MINIMUM AND MAXIMUM POSSIBLE PENALTIES ARE, AND SINCE YOU ARE VOLUNTARILY PLEADING GUILTY, THE COURT ACCEPTS YOUR GUILTY PLEA AND ENTERS A JUDGMENT OF GUILTY ON YOUR PLEA. 16 (HAVE THE DEFENDANT AND DEFENSE COUNSEL SIGN THE CHANGE OF PLEA DOCUMENT AND INTERROGATE ON SIGNATURES.) THE COURT ORDERS A PRE-SENTENCE INVESTIGATION REPORT TO BE PREPARED BY THE UNITED STATES OFFICE OF PROBATION AND PRETRIAL SERVICES. DEFENDANT, THAT REPORT WILL BE VERY IMPORTANT TO THE COURT IN ITS DECISION AS TO WHAT YOUR SENTENCE WILL BE. PURSUANT TO THE LOCAL RULES OF CRIMINAL PROCEDURE, YOU AND YOUR ATTORNEY WILL HAVE AN OPPORTUNITY TO EXAMINE THE REPORT, AND YOU WILL HAVE THE RIGHT AND THE OPPORTUNITY TO PRESENT INFORMATION TO THE COURT CONCERNING ANY MATTERS IN THE REPORT WHICH YOU DISPUTE. THE UNITED STATES WILL BE AFFORDED THAT SAME OPPORTUNITY. THE COURT IS CONFIDENT THAT COUNSEL ARE AWARE OF THE PROVISIONS SET FORTH IN THE RULES OF CRIMINAL PROCEDURE CONCERNING THE METHOD OF THE RESOLUTION OF DISPUTES CONCERNING FACTORS RELEVANT TO THE SENTENCING, AND THAT COUNSEL WILL FULLY COMPLY WITH THESE PROVISIONS. SENTENCING IS SET FOR __________________________________ AT __:__ _.M. DEFENSE COUNSEL, IS THERE ANY OTHER MATTER YOU OR DEFENDANT WISH TO BRING TO MY ATTENTION? AUSA, IS THERE ANY OTHER MATTER YOU WISH TO BRING TO MY ATTENTION? [REVIEW CUSTODY AND BOND STATUS AND TERMS] THESE PROCEEDINGS ARE ADJOURNED. 17

=== Judge Hornak's Hints for Potential Jurors ===

Judge Hornak’s Hints for Potential Jurors June, 2019 1. We’ve summoned potential jurors for jury selection this morning. We will ask questions of you in a process called voir dire to create a list of the necessary number of potential jurors. That list will then be provided to the attorneys who will strike from the potential jurors so we can reach our final number of seated jurors. 2. My staff will be down shortly to bring you to the courtroom to begin the selection process. 3. As my Courtroom Deputy lines you up, please remember the person in front of you and behind you. I say this because you will take an elevator to reach the courtroom and need to reorganize yourselves before entering. 4. Once you have been realigned outside of the courtroom doors, my staff will provide you with a one (1) page document that contains a series of personal identifying questions. You do not need to fill-out this sheet. 5. After you are seated in the courtroom, I will provide a brief overview of the process we will use today, and present an outline of the facts of the case. Once this is completed, I will ask each of you to stand individually to read from the information sheet that my staff provided. 6. Once every potential juror has read from the information sheet, I will pose a series of questions to the jury pool as a group. If your answer to any of the questions I ask is “yes,” you will simply stand and say your juror number, and nothing else. 7. My staff will be recording which jurors answer “yes” to each question. At the conclusion of my questioning, I will retire to my Chambers, so we can begin the individual portion of the voir dire. 8. 9. It should take about an hour from the time you are seated in the courtroom until we begin the individual voir dire. For the individual voir dire, my Courtroom Deputy will assist in bringing only the necessary number of jurors back to Chambers for follow-up questions. Therefore, not everyone will participate in the individual voir dire. The individual voir dire is on the record, and consistent with applicable law, the Court will provide for public access to the content of proceedings in an appropriate fashion. 10. Once our list of the necessary number of jurors has been completed, everyone will return to the courtroom, and we will begin the strike process. 11. After the attorneys have completed their strikes, my Courtroom Deputy will seat the jurors that have been selected. Those not seated will be dismissed at that point. 12. Feel free to bring reading materials and bottled water up to the Courtroom.

=== Judge Hornak's Trial Procedures ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA June, 2019 JUDGE HORNAK’S TRIAL PROCEDURES 1. 2. If you will be using any technology during the trial, please contact the Courtroom Deputy, Brian Babik, at least one (1) week in advance to discuss set-up at a time prior to the day of jury selection to test your equipment. Each counsel table is equipped with both HDMI and VGA cable capability for laptops. If you plan on utilizing a Mac, you will need an adapter, which the court staff does not provide. 3. An ELMO projector is also available to show hard copies of documents. 4. If you will be bringing any outside technology into the building for trial (i.e. laptops, iPads, projectors, jumbo screens) please contact Chambers and provide a list of the individuals and what devices they will be bringing with them. As a general rule, the Court requires that counsel arrange for the use by all parties of “major” AV equipment (projectors, jumbo screens, etc.). The court staff will then make the appropriate arrangements with the USMS Office. 5. Courtroom 6A does not have dedicated attorney conference rooms. If your legal team requires one for the duration of the trial, please contact Chambers prior to the date of jury selection, and we will do our best to locate a meeting room for your use. 6. On the morning of jury selection, we anticipate having the jury seated in the courtroom to begin voir dire at 9:30 AM. Please be in the Courtroom by 8:45 AM. 7. Mr. Babik will provide counsel with a list of potential jurors once he has seated the potential jurors in the courtroom. 8. Once we have completed the group voir dire in the courtroom, we will usually relocate to Chambers and begin the individual portion of voir dire. At least the following shall be present: The Court, law clerk, courtroom deputy, court reporter, counsel and one (1) client representative (unless waived). That portion of the voir dire is also on the record, and consistent with applicable law, the Court will provide for public access to the content of those proceeding in an appropriate fashion. 9. For the duration of the trial, the Chambers staff will provide the jury with bottles of water. Counsel will be responsible for their own bottled water. If requested, Chambers will also provide a pitcher, which can be filled at the water fountain located just outside of the courtroom’s main doors. Only cups or bottles with a mechanical screwing/snap-tite lids for soft drinks are permitted at counsel table. No flimsy take-out lids. 10. Trial will begin each morning at 9:00 AM. We will take our lunch break between 12:00 PM and 12:30 PM, for approximately an hour, depending on when counsel and the Court deem it appropriate. We will also take a 10-15 minute break each morning and each afternoon, and recess each day no later than 4:30 PM. 11. If counsel has any issues to address with the Court prior to the start of a trial day, they shall notify the court staff upon their arrival to the courtroom. 12. Counsel is responsible to meet with Mr. Babik at the conclusion of each trial day to confirm which exhibits have been admitted into the record. Counsel shall provide Mr. Babik with the admitted exhibits, which he will use to create a binder that will go up with the jury at the time of deliberations. 13. Opening Statements/Closing Arguments are usually limited to 30 minutes per party. In civil trials, Plaintiff closes last. Judge Hornak will discuss with counsel whether the jury charge is given before or after closings. 14. Counsel may move around the Courtroom, and approach the witness, without specific permission, so long as they: (a) do not abuse the privilege; (b) do not block anyone’s view; (c) do not invade anyone’s space; and (d) behave themselves. 15. Counsel are to address all participant’s formally (Ms., Mr., Sir, Madam, Miss, etc.). No first names except as to small children. Counsel are expected to treat everyone in the Courtroom professionally and with respect.

=== Sample Civil Final Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CHRISTOPHER SANSOM and MARIA SANSOM, husband and wife, Plaintiffs, v. CROWN EQUIPMENT CORPORATION and CROWN LIFT TRUCKS, Defendants. Civil Action No. 2:10-cv-00958 Judge Mark R. Hornak COURT’S FINAL JURY INSTRUCTIONS NOW THAT YOU HAVE HEARD ALL OF THE EVIDENCE AND THE ARGUMENTS OF COUNSEL, IT BECOMES MY DUTY, AS JUDGE, TO GIVE YOU THE INSTRUCTIONS OF THE COURT CONCERNING THE LAW APPLICABLE TO THIS CASE. I WILL READ THESE INSTRUCTIONS TO YOU IN OPEN COURT AND YOU WILL HAVE A COPY WITH YOU IN THE JURY ROOM DURING YOUR DELIBERATIONS. SO, TO THE EXTENT THAT YOU TAKE NOTES, KNOW THAT YOU'LL HAVE THESE INSTRUCTIONS SO YOU DON'T HAVE TO NOTE THESE REMARKS. 1 IT IS YOUR DUTY, AS JURORS, TO FOLLOW THE LAW AS STATED IN THESE INSTRUCTIONS, AND TO APPLY THE LAW TO THE FACTS AS YOU FIND THEM TO BE FROM THE EVIDENCE IN THIS CASE. YOU ARE NOT TO SINGLE OUT ANY ONE OF THESE INSTRUCTIONS ALONE AS STATING THE LAW, BUT RATHER YOU MUST CONSIDER THE INSTRUCTIONS AS A WHOLE. YOU ARE NOT TO BE CONCERNED ABOUT THE WISDOM OF ANY RULE OF LAW STATED BY ME. YOU MUST FOLLOW AND APPLY THE LAW. IF THERE IS ANY CONTRADICTION BETWEEN THE PRELIMINARY INSTRUCTIONS I GAVE YOU AT THE BEGINNING OF THE CASE AND THESE FINAL INSTRUCTIONS, PLEASE KEEP IN MIND THAT THESE FINAL INSTRUCTIONS CONTROL AND SHOULD BE FOLLOWED BY YOU IN REACHING YOUR DECISION IN THIS CASE. AT THE OUTSET, YOU SHOULD UNDERSTAND THAT I AM ABSOLUTELY NEUTRAL IN PRESENTING THESE INSTRUCTIONS TO YOU. IT IS NOT MY FUNCTION TO DETERMINE THE FACTS, BUT RATHER, YOURS. YOU MUST PERFORM YOUR DUTIES AS JURORS WITHOUT BIAS OR PREJUDICE AS TO EITHER PARTY. THE LAW DOES NOT PERMIT YOU 2 TO BE GOVERNED BY SYMPATHY, PREJUDICE, OR PUBLIC OPINION. EACH PARTY EXPECTS THAT YOU WILL CAREFULLY AND IMPARTIALLY CONSIDER ALL OF THE EVIDENCE, FOLLOW THE LAW AS IT IS NOW BEING GIVEN TO YOU, AND REACH A JUST VERDICT, REGARDLESS OF THE CONSEQUENCES. ALL OF THE INSTRUCTIONS OF LAW GIVEN TO YOU BY THE COURT - THOSE GIVEN TO YOU AT THE BEGINNING OF THE TRIAL, THOSE GIVEN TO YOU DURING THE TRIAL, AND THESE FINAL INSTRUCTIONS - - MUST GUIDE AND GOVERN YOUR DELIBERATIONS. REGARDLESS OF ANY OPINION YOU MAY HAVE AS TO WHAT THE LAW IS OR OUGHT TO BE. IT WOULD BE A VIOLATION OF YOUR SWORN DUTY TO BASE A VERDICT UPON ANY VIEW OF THE LAW OTHER THAN THAT GIVEN IN THE INSTRUCTIONS OF THE COURT, JUST AS IT WOULD ALSO BE A VIOLATION OF YOUR SWORN DUTY, AS JUDGES OF THE FACTS, TO BASE A VERDICT UPON ANYTHING OTHER THAN THE EVIDENCE IN THE CASE. IN YOUR DELIBERATIONS, YOU MUST NOT BE INFLUENCED BY THE FACT THAT PLAINTIFFS CHRISTOPHER SANSOM AND MARIA SANSOM ARE INDIVIDUALS WHILE THE DEFENDANT CROWN 3 EQUIPMENT CORPORATION, IS A CORPORATION. A CORPORATION IS ENTITLED TO THE SAME FAIR TRIAL AS A PRIVATE INDIVIDUAL. ALL PERSONS, INCLUDING CORPORATIONS, ARE EQUAL BEFORE THE LAW, AND YOU MUST TREAT ALL PARTIES AS EQUALS HERE. THEREFORE, YOU MUST CONSIDER AND DECIDE THIS CASE AS AN ACTION BETWEEN PERSONS OF EQUAL STANDING IN THE COMMUNITY, OF EQUAL WORTH, AND HOLDING THE SAME OR SIMILAR STATIONS OF LIFE. SIMPLY BECAUSE A DEFENDANT HAS BEEN SUED DOES NOT MEAN THAT THE DEFENDANT IS LIABLE. ANYONE CAN FILE A LAWSUIT AGAINST ANOTHER. THE FACT THAT CHRISTOPHER AND MARIA SANSOM FILED A CLAIM AGAINST CROWN EQUIPMENT CORPORATION AND PURSUED IT THROUGH THIS TRIAL DOES NOT MEAN THAT CROWN EQUIPMENT DID ANYTHING TO THEM THAT IS WRONG UNDER THE LAW. I THEREFORE INSTRUCT YOU THAT YOU MUST NOT INFER THAT CROWN EQUIPMENT DID ANYTHING UNLAWFUL FROM THE MERE FACT THAT THIS LAWSUIT WAS FILED AND BROUGHT TO TRIAL. 4 THE WORD "EVIDENCE" HAS BEEN USED EXTENSIVELY THROUGHOUT THIS TRIAL. YOUR DELIBERATIONS ARE TO BE LIMITED TO THE EVIDENCE ADMITTED FOR YOUR CONSIDERATION IN THIS CASE WHICH CONSISTS OF THE SWORN TESTIMONY OF THE WITNESSES AND ALL DOCUMENTS, PHOTOS, OR OTHER ITEMS THAT MAY HAVE BEEN ADMITTED INTO EVIDENCE OR STIPULATED TO BY THE PARTIES. BECAUSE THE LAWYERS ARE REQUIRED TO PREPARE EXHIBITS LONG BEFORE A TRIAL, THE EXHIBITS ADMITTED AT TRIAL MAY SKIP OVER MANY NUMBERS OR LETTERS. THAT IS NOT A MATTER OF ANY CONCERN TO THE COURT OR YOU. CERTAIN THINGS, HOWEVER, ARE NOT EVIDENCE, SUCH AS: 1. OPENING STATEMENTS, ARGUMENTS, QUESTIONS AND COMMENTS BY THE ATTORNEYS REPRESENTING THE PARTIES IN THE CASE AND CLOSING ARGUMENTS ARE NOT EVIDENCE. 2. OBJECTIONS ARE NOT EVIDENCE. LAWYERS HAVE A RIGHT TO OBJECT WHEN THEY BELIEVE SOMETHING IS IMPROPER. ONLY BY RAISING AN OBJECTION CAN A LAWYER REQUEST AND OBTAIN A RULING FROM THE COURT ON THE ADMISSIBILITY OF THE EVIDENCE BEING OFFERED BY THE OTHER SIDE. YOU SHOULD NOT BE 5 INFLUENCED AGAINST AN ATTORNEY OR HIS CLIENT BECAUSE THE ATTORNEY HAS MADE OBJECTIONS. DO NOT ATTEMPT, MOREOVER, TO INTERPRET MY RULINGS ON OBJECTIONS AS SOMEHOW INDICATING TO YOU WHO I BELIEVE SHOULD WIN OR LOSE THE CASE. IF I SUSTAINED AN OBJECTION TO A QUESTION, YOU MUST IGNORE THE QUESTION AND MUST NOT TRY TO GUESS WHAT THE ANSWER MIGHT HAVE BEEN. 3. TESTIMONY THAT WAS STRICKEN FROM THE RECORD, OR THAT I TOLD YOU TO DISREGARD, IS NOT EVIDENCE AND MUST NOT BE CONSIDERED AS SUCH. 4. ANYTHING YOU MAY HAVE SEEN OR HEARD ABOUT THIS CASE OUTSIDE THE COURTROOM IS NOT EVIDENCE. GENERALLY SPEAKING, THERE ARE TWO TYPES OF EVIDENCE THAT ARE GENERALLY PRESENTED DURING A TRIAL - DIRECT EVIDENCE AND CIRCUMSTANTIAL EVIDENCE. "DIRECT EVIDENCE" IS DIRECT PROOF OF A FACT, SUCH AS TESTIMONY BY A WITNESS ABOUT WHAT THE WITNESS SAID OR SAW OR HEARD OR DID, ESSENTIALLY WHAT THE WITNESS PERSONALLY KNOWS. THE EVIDENCE IN THIS CASE CONSISTS NOT ONLY OF THE TESTIMONY FROM THE WITNESSES 6 AND THE DOCUMENTS WHICH HAVE BEEN OFFERED INTO EVIDENCE AND SHOWN TO YOU, BUT ALSO INCLUDES SUCH FAIR AND REASONABLE INFERENCES AS PROPERLY FLOW FROM THE FACTS WHICH ARE NOT DISPUTED OR WHICH YOU BELIEVE TO BE TRUE. THIS IS SOMETIMES REFERRED TO AS "CIRCUMSTANTIAL EVIDENCE" AND IS SIMPLY INDIRECT PROOF OF ONE OR MORE FACTS FROM WHICH YOU COULD FIND ANOTHER FACT. REMEMBER MY RAIN EXAMPLE FROM THE PRELIMINARY INSTRUCTIONS. ALTHOUGH YOU CAN HARDLY SEE OUTSIDE FROM THIS ROOM, IF ONE OR MORE PERSONS WALKED IN WITH A WET TRENCH COAT OR DRIPPING UMBRELLA, IT WOULD BE REASONABLE AND LOGICAL TO CONCLUDE FROM THAT CIRCUMSTANTIAL OR INDIRECT EVIDENCE THAT IT HAD BEEN RAINING OUTSIDE. YOU SHOULD CONSIDER BOTH KINDS OF EVIDENCE. THE LAW MAKES NO DISTINCTION BETWEEN THE WEIGHT TO BE GIVEN TO EITHER DIRECT OR CIRCUMSTANTIAL EVIDENCE. WHILE YOU MAY CONSIDER ONLY THE EVIDENCE IN THE CASE IN ARRIVING AT YOUR VERDICT, YOU ARE PERMITTED TO DRAW SUCH REASONABLE INFERENCES FROM THE TESTIMONY AND EXHIBITS AS YOU FEEL ARE 7 JUSTIFIED IN THE LIGHT OF COMMON SENSE. YOU ARE TO DECIDE HOW MUCH WEIGHT TO GIVE ANY EVIDENCE. YOU, LADIES AND GENTLEMEN OF THE JURY, SHOULD DRAW UPON YOUR OWN EXPERIENCES IN LIFE AND YOUR OWN COMMON SENSE IN INTERPRETING THE FACTS WHICH HAVE BEEN PRESENTED BY THE PARTIES IN THE CASE. IN OTHER WORDS, YOU MAY REACH CONCLUSIONS WHICH REASON AND COMMON SENSE LEAD YOU TO REACH FROM THE FACTS WHICH HAVE BEEN ESTABLISHED BY THE EVIDENCE IN THE CASE. YOU HAVE ALSO HEARD FROM WITNESSES WHO GAVE OPINIONS ABOUT MATTERS REQUIRING SPECIAL KNOWLEDGE OR SKILL. YOU SHOULD JUDGE THIS TESTIMONY IN THE SAME WAY THAT YOU JUDGE THE TESTIMONY OF ANY OTHER WITNESS. THE FACT THAT SUCH PERSON HAS GIVEN AN OPINION DOES NOT MEAN THAT YOU ARE REQUIRED TO ACCEPT IT. GIVE THE TESTIMONY WHATEVER WEIGHT YOU THINK IT DESERVES, CONSIDERING THE REASONS GIVEN FOR THE OPINION, THE WITNESS’S QUALIFICATIONS, AND ALL OF THE OTHER EVIDENCE IN THE CASE. I HAVE SAID THAT YOU MUST CONSIDER ALL OF THE EVIDENCE. 8 THIS DOES NOT MEAN, HOWEVER, THAT YOU MUST ACCEPT ALL OF THE EVIDENCE AS TRUE OR ACCURATE. IN ORDER TO ARRIVE AT THE TRUE FACTS, AND DRAW THE REASONABLE AND PROPER INFERENCES THEREFROM, YOU MUST PASS UPON THE CREDIBILITY, THAT IS, THE BELIEVABILITY, OF EACH WITNESS. YOU, AS JURORS, ARE THE SOLE JUDGES OF THE CREDIBILITY OF THE WITNESSES AND THE WEIGHT THEIR TESTIMONY DESERVES. YOU MAY BE GUIDED BY THE APPEARANCE AND CONDUCT OF THE WITNESS, OR THE MANNER IN WHICH THE WITNESS TESTIFIES, OR BY THE CHARACTER OF THE TESTIMONY GIVEN, OR BY EVIDENCE TO THE CONTRARY OF TESTIMONY GIVEN. YOU SHOULD CAREFULLY SCRUTINIZE ALL THE TESTIMONY GIVEN, THE CIRCUMSTANCES UNDER WHICH EACH WITNESS HAS TESTIFIED, AND EVERY MATTER IN EVIDENCE WHICH TENDS TO SHOW WHETHER A WITNESS IS WORTHY OF BELIEF. CONSIDER EACH WITNESS' INTELLIGENCE, MOTIVE AND STATE OF MIND, AND DEMEANOR OR MANNER WHILE ON THE STAND. CONSIDER THE WITNESS' ABILITY TO OBSERVE THE MATTERS AS TO WHICH HE OR SHE HAS TESTIFIED AND WHETHER HE OR SHE IMPRESSES YOU AS 9 HAVING AN ACCURATE RECOLLECTION OF THESE MATTERS. CONSIDER ALSO ANY RELATION EACH WITNESS MAY BEAR TO EITHER SIDE OF THE CASE; THE MANNER IN WHICH EACH WITNESS MIGHT BE AFFECTED BY THE VERDICT; AND THE EXTENT TO WHICH, IF AT ALL, EACH WITNESS IS EITHER SUPPORTED OR CONTRADICTED BY OTHER EVIDENCE IN THE CASE. YOU SHOULD CONSIDER WHETHER THE WITNESS GAVE FRANK AND STRAIGHTFORWARD ANSWERS TO THE QUESTIONS OR WHETHER THE ANSWERS WERE EVASIVE OR MISLEADING. YOU SHOULD CONSIDER THE CREDIBILITY OF A WITNESS IN THE LIGHT OF CONTRADICTORY TESTIMONY, IF ANY. IN CONSIDERING THE EVIDENCE YOU MAY FIND INCONSISTENCIES OR DISCREPANCIES IN THE TESTIMONY OF A WITNESS, OR BETWEEN THE TESTIMONY OF DIFFERENT WITNESSES, WHICH MAY OR MAY NOT CAUSE YOU, THE JURY, TO DISCREDIT SUCH TESTIMONY. TWO OR MORE PERSONS WITNESSING AN EVENT OR A TRANSACTION MAY SEE OR HEAR IT DIFFERENTLY; AN INNOCENT MISRECOLLECTION, LIKE FAILURE OF RECOLLECTION, IS NOT AN UNCOMMON EXPERIENCE. IN WEIGHING THE EFFECT OF A 10 DISCREPANCY, ALWAYS CONSIDER WHETHER IT PERTAINS TO A MATTER OF IMPORTANCE OR AN UNIMPORTANT DETAIL, AND WHETHER THE DISCREPANCY RESULTS FROM INNOCENT ERROR OR INTENTIONAL FALSEHOOD. EVEN ACTUAL CONTRADICTIONS IN THE TESTIMONY OF WITNESSES DO NOT NECESSARILY MEAN THAT A WITNESS HAS BEEN WILLFULLY FALSE. POOR MEMORY IS NOT UNCOMMON. SOMETIMES A WITNESS FORGETS; SOMETIMES ONE REMEMBERS INCORRECTLY. IT IS ALSO TRUE THAT TWO PERSONS WITNESSING AN INCIDENT MAY SEE OR HEAR IT DIFFERENTLY. IF DIFFERENT PARTS OF THE TESTIMONY OF ANY WITNESS OR WITNESSES APPEAR TO BE INCONSISTENT, YOU THE JURY SHOULD TRY TO RECONCILE THE CONFLICTING STATEMENTS, WHETHER OF THE SAME OR DIFFERENT WITNESSES, AND YOU SHOULD DO SO IF IT CAN BE DONE FAIRLY AND SATISFACTORILY. IF, HOWEVER, YOU DECIDE THAT THERE IS A GENUINE AND IRRECONCILABLE CONFLICT OF TESTIMONY, IT IS YOUR FUNCTION AND DUTY TO DETERMINE WHICH, IF ANY, OF THE CONTRADICTORY STATEMENTS YOU WILL BELIEVE. 11 A WITNESS MAY BE DISCREDITED OR IMPEACHED BY CONTRADICTORY EVIDENCE OR BY EVIDENCE THAT AT SOME OTHER TIME THE WITNESS HAS SAID OR DONE SOMETHING, OR HAS FAILED TO SAY OR DO SOMETHING THAT IS INCONSISTENT WITH THE WITNESS' PRESENT TESTIMONY. IF YOU BELIEVE ANY WITNESS HAS BEEN IMPEACHED AND THUS DISCREDITED, YOU MAY GIVE THE TESTIMONY OF THAT WITNESS SUCH CREDIBILITY, IF ANY, YOU THINK IT MAY DESERVE. IF YOU DECIDE THAT A WITNESS HAS DELIBERATELY FALSIFIED TESTIMONY ON A SIGNIFICANT POINT, YOU SHOULD TAKE THIS INTO CONSIDERATION IN DECIDING WHETHER OR NOT TO BELIEVE THE REST OF THE TESTIMONY; AND YOU MAY REFUSE TO BELIEVE THE REST OF THE TESTIMONY, BUT YOU ARE NOT REQUIRED TO DO SO. YOU ARE NOT REQUIRED TO ACCEPT TESTIMONY, EVEN THOUGH THE TESTIMONY IS UNCONTRADICTED AND THE WITNESS IS NOT DISCREDITED. FOR EXAMPLE, YOU MAY DECIDE, BECAUSE OF THE WITNESS' BEARING AND DEMEANOR, BECAUSE OF THE INHERENT IMPROBABILITY OF HIS OR HER TESTIMONY, OR BECAUSE OF THE WITNESS' TESTIMONY ON OTHER SUBJECTS, THAT SUCH TESTIMONY 12 IS NOT WORTHY OF BELIEF. DURING THIS TRIAL, YOU HAVE HEARD THE TERM "DEPOSITION" USED BY THE LAWYERS. A DEPOSITION IS SIMPLY THE SWORN TESTIMONY OF A PERSON TAKEN BY THE ATTORNEYS DURING THE PENDENCY OF A LAWSUIT. THE TRANSCRIPT OR VIDEOTAPE OF THAT TESTIMONY MAY BE PRESENTED IN THIS TRIAL IF THE PERSON/ WITNESS IS NOT AVAILABLE TO APPEAR OR IF THE WITNESS APPEARS AND TESTIFIES TO SOMETHING DIFFERENTLY THAN PREVIOUSLY TESTIFIED UNDER OATH. IN THAT EVENT THE DEPOSITION TRANSCRIPT MAY BE USED TO TRY TO ESTABLISH A PRIOR INCONSISTENT STATEMENT OR OTHERWISE AFFECT THE CREDIBILITY OR BELIEVABILITY OF THE WITNESS. ALSO, THE WEIGHT OF EVIDENCE IS NOT NECESSARILY DETERMINED BY THE NUMBER OF WITNESSES TESTIFYING TO THE EXISTENCE OR NON-EXISTENCE OF ANY FACT OR THE NUMBER OF EXHIBITS OFFERED BY A PARTY. YOU MAY FIND THAT THE TESTIMONY OF A SMALLER NUMBER OF WITNESSES AS TO ANY FACT IS MORE CREDIBLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES TO THE CONTRARY. 13 AFTER MAKING YOUR OWN JUDGMENT, YOU WILL GIVE THE TESTIMONY OF EACH WITNESS SUCH WEIGHT, IF ANY, AS YOU THINK IT MAY DESERVE. IN SHORT, YOU MAY ACCEPT OR REJECT THE TESTIMONY OF ANY WITNESS IN WHOLE OR IN PART. THE LAW DOES NOT REQUIRE ANY PARTY TO CALL AS WITNESSES ALL PERSONS WHO MAY HAVE BEEN PRESENT AT ANY TIME OR PLACE INVOLVED IN THE CASE, OR WHO MAY APPEAR TO HAVE SOME KNOWLEDGE OF THE MATTERS AT ISSUE AT THIS TRIAL. GENERALLY, ALL WITNESSES ARE AVAILABLE TO ALL PARTIES AND NO NEGATIVE INFERENCE IS TO BE DRAWN BY YOU FROM THE FACT THAT CERTAIN POTENTIAL WITNESSES WERE NOT CALLED BY EITHER SIDE TO TESTIFY. ALSO, THE LAW DOES NOT REQUIRE ANY PARTY TO PRODUCE AS EXHIBITS ALL PAPERS AND THINGS MENTIONED IN THE CASE. THE PARTIES AND THEIR LAWYERS DECIDE WHICH WITNESS TESTIMONY AND EVIDENCE TO PRESENT AT TRIAL AND SUCH TESTIMONY AND EVIDENCE MAY BE LIMITED AT TIMES BY THE RULES OF EVIDENCE ENFORCED BY THE COURT. HOWEVER, YOU MUST DECIDE THE ISSUES IN THE CASE BASED ONLY UPON THE TESTIMONY AND EVIDENCE WHICH HAS BEEN PRESENTED TO YOU HERE IN THE 14 COURTROOM. I WILL NOW INSTRUCT YOU MORE FULLY ON THE ISSUES YOU MUST ADDRESS IN THIS CASE. A. PREPONDERANCE OF THE EVIDENCE THIS IS A CIVIL CASE. PLAINTIFFS CHRISTOPHER SANSOM AND MARIA SANSOM ARE THE PARTIES WHO BROUGHT THIS LAWSUIT. DEFENDANT CROWN EQUIPMENT CORPORATION IS THE PARTY AGAINST WHOM THE LAWSUIT WAS FILED AND MUST DEFEND. PLAINTIFFS HAVE THE BURDEN OF PROVING THEIR PART OF THE CASE BY WHAT IS CALLED THE PREPONDERANCE OF THE EVIDENCE. THAT MEANS PLAINTIFFS HAVE TO PROVE TO YOU, IN LIGHT OF ALL THE EVIDENCE, THAT WHAT THEY CLAIM IS MORE LIKELY SO THAN NOT SO. TO SAY IT DIFFERENTLY: IF YOU WERE TO PUT THE EVIDENCE FAVORABLE TO PLAINTIFFS AND THE EVIDENCE FAVORABLE TO DEFENDANT ON OPPOSITE SIDES OF THE SCALES OF JUSTICE, PLAINTIFFS WOULD HAVE TO MAKE THE SCALES TIP SOMEWHAT ON THEIR SIDE. IF CHRISTOPHER AND MARIA SANSOM FAIL TO MEET THIS BURDEN, THE VERDICT MUST BE FOR CROWN EQUIPMENT 15 CORPORATION. IF YOU FIND AFTER CONSIDERING ALL THE EVIDENCE THAT A CLAIM OR FACT IS MORE LIKELY SO THAN NOT SO, THEN THE CLAIM OR FACT HAS BEEN PROVEN BY A PREPONDERANCE OF THE EVIDENCE. IN DETERMINING WHETHER ANY FACT HAS BEEN PROVEN BY A PREPONDERANCE OF EVIDENCE IN THE CASE, YOU MAY, UNLESS OTHERWISE INSTRUCTED, CONSIDER THE TESTIMONY OF ALL WITNESSES, REGARDLESS OF WHO MAY HAVE CALLED THEM, AND ALL EXHIBITS RECEIVED IN EVIDENCE, REGARDLESS OF WHO MAY HAVE PRODUCED THEM. I WILL NOW INSTRUCT YOU ON THE SUBSTANTIVE LAW YOU ARE TO APPLY IN THIS CASE. B. INTRODUCTION TO SUBSTANTIVE INSTRUCTIONS AT THIS POINT, I WANT TO INSTRUCT YOU ON THE CLAIM THAT THE SANSOMS HAVE FILED AGAINST CROWN. SPECIFICALLY, THE SANSOMS ARE PURSUING A PRODUCT LIABILITY CLAIM AGAINST CROWN RELATING TO AN ALLEGED DEFECT IN THE STOCKPICKER. THE SANSOMS ASSERT THAT AS A RESULT OF A DEFECTIVE CONDITION, 16 CHRISTOPHER SANSOM SUSTAINED SERIOUS PERSONAL INJURIES AND INCURRED OTHER LOSSES, AND THAT MRS. SANSOM WAS ALSO DAMAGED AS A RESULT. C. GENERAL LIABILITY INSTRUCTION IN ORDER TO RECOVER ON THEIR CLAIM AGAINST CROWN, THE SANSOMS MUST PROVE EACH OF THE FOLLOWING FACTS BY A PREPONDERANCE OF THE EVIDENCE: FIRST: THAT CROWN MANUFACTURED THE STOCKPICKER THAT WAS BEING USED BY MR. SANSOM AT THE TIME OF HIS INJURIES; SECOND: THAT THE STOCKPICKER WAS DEFECTIVE; AND THIRD: THAT THE DEFECT WAS A FACTUAL CAUSE OF MR. SANSOM'S INJURIES. D. DEFINITION OF DESIGN DEFECT A PRODUCT IS DEFECTIVE IN DESIGN WHEN THE FORESEEABLE RISKS OF HARM POSED BY THE PRODUCT COULD HAVE BEEN REDUCED OR AVOIDED BY THE ADOPTION OF A REASONABLE ALTERNATIVE DESIGN BY THE SELLER OR OTHER DISTRIBUTOR, AND THE OMISSION OF THE ALTERNATIVE DESIGN RENDERS THE PRODUCT 17 NOT REASONABLY SAFE. E. PROOF OF REASONABLE ALTERNATIVE DESIGN REQUIRED A PRODUCT IS DEFECTIVELY DESIGNED IF, AT THE TIME THE PRODUCT WAS DESIGNED, A REASONABLE ALTERNATIVE DESIGN WAS FEASIBLE AND PRACTICABLE, AND THE ABSENCE OF THAT ALTERNATIVE DESIGN INCREASED OR CAUSED A FORESEEABLE RISK OF HARM. IN CONSIDERING WHETHER THE ALTERNATIVE DESIGN PROPOSED BY MR. SANSOM IS REASONABLE, AND WHETHER ITS ABSENCE RENDERED THE STOCKPICKER NOT REASONABLY SAFE, YOU MAY CONSIDER THE FOLLOWING FACTORS: (1) THE SERIOUSNESS AND LIKELIHOOD OF THE FORSEEABLE RISKS OF HARM CAUSED BY THE STOCKPICKER AS DESIGNED; (2) THE INSTRUCTIONS AND WARNINGS ACCOMPANYING THE STOCKPICKER AS DESIGNED; AND (3) THE NATURE AND STRENGTH OF CONSUMER EXPECTATIONS REGARDING THE STOCKPICKER, INCLUDING EXPECTATIONS ARISING FROM PRODUCT PORTRAYAL AND 18 MARKETING, AS DESIGNED. YOU MAY ALSO CONSIDER (4) WHETHER THOSE ALTERNATIVE DESIGNS WOULD HAVE INCREASED OR DECREASED THE USEFULNESS OF THE STOCKPICKER, (5) INCREASED OR DECREASED THE OVERALL SAFETY OF THE STOCKPICKER, AND (6) INCREASED OR DECREASED ANY OTHER BENEFIT PROVIDED BY THE STOCKPICKER, INCLUDING SUCH BENEFITS AS PRODUCTION PRICE AND COSTS, PRODUCT LONGEVITY AND DURABILITY, EASE AND COST OF MAINTENANCE AND REPAIR, AESTHETICS, CONVENIENCE, AND RANGE OF CONSUMER CHOICE AMONG PRODUCTS. F. INDUSTRY STANDARDS & CUSTOM YOU HAVE HEARD EVIDENCE CONCERNING CERTAIN INDUSTRY STANDARDS AND CUSTOMS IN THE INDUSTRY. SPECIFICALLY, YOU HAVE HEARD EVIDENCE CONCERNING CERTAIN INDUSTRY STANDARDS AS IT RELATES TO OPERATOR FALL PROTECTION WITH RESPECT TO A STOCKPICKER. YOU HAVE ALSO HEARD EVIDENCE ABOUT THE INDUSTRY PRACTICES AND CUSTOMS AS IT RELATES TO OPERATOR FALL PROTECTION ON A STOCKPICKER. SUCH EVIDENCE IS 19 RELEVANT, BUT NOT CONCLUSIVE, IN YOUR DETERMINATION OF WHETHER OR NOT THE DESIGN OF THE CROWN STOCKPICKER WAS REASONABLY SAFE. G(1). FACTUAL CAUSE IF YOU FIND THAT THE STOCKPICKER WAS DEFECTIVE, CROWN IS LIABLE FOR ALL HARM FACTUALLY CAUSED TO MR. SANSOM BY SUCH DEFECTIVE CONDITION. A DEFECT IS A FACTUAL CAUSE IF IT PLAYED ANY MEANINGFUL ROLE IN CAUSING THE HARM ALLEGED. TO BE A FACTUAL CAUSE, THE DEFECT MUST HAVE BEEN AN ACTUAL, REAL FACTOR IN CAUSING THE HARM, EVEN IF THE RESULT IS UNUSUAL OR UNEXPECTED. A FACTUAL CAUSE CANNOT BE AN IMAGINARY OR FANCIFUL FACTOR HAVING NO CONNECTION OR ONLY AN INSIGNIFICANT CONNECTION WITH THE INJURIES. TO BE A FACTUAL CAUSE, THE DEFECT NEED NOT BE THE ONLY FACTUAL CAUSE. THE FACT THAT SOME OTHER CAUSES JOIN WITH WITH THE DEFECT IN PRODUCING AN INJURY DOES NOT RELIEVE CROWN FROM LIABILITY AS LONG AS THE DEFECT IS A FACTUAL 20 CAUSE OF THE INJURY. BUT IF THE INJURIES WOULD HAVE OCCURRED EVEN IF THE DEFECT HAD NOT EXISTED, THEN THE DEFECT CANNOT BE A FACTUAL CAUSE OF THE INJURY. G(2). SUPERSEDING CAUSE YOU HAVE HEARD TESTIMONY AND OTHER EVIDENCE REGARDING THE ACTIONS OR INACTIONS OF PEOPLE OR ORGANIZATIONS OTHER THAN CROWN, INCLUDING MR. SANSOM, RELATING TO THE ACCIDENT IN QUESTION. IF YOU FIND THAT THE STOCKPICKER WAS DEFECTIVELY DESIGNED, AND THAT SUCH DEFECTIVE DESIGN WAS A FACTUAL CAUSE OF MR. SANSOM’S INJURIES, YOU ARE NOT TO CONSIDER THE ACTIONS OR INACTION OF OTHERS UNLESS YOU FIND THAT THEY WERE A SUPERSEDING CAUSE. A SUPERSEDING CAUSE MEANS THAT A CURING OF ANY DEFECT WOULD NOT HAVE PREVENTED THE INJURY BECAUSE ONLY THE CONDUCT OF OTHERS, RATHER THAN THE DEFECT, CAUSED THE INJURY, AND WAS THEREFORE THE SOLE CAUSE OF THE HARM; OR 21 THAT SUCH OTHER CONDUCT WAS SO OUTRAGEOUS AND UNFORESEEABLE THAT SUCH OTHER CONDUCT, RATHER THAN ANY DEFECT, HAD BECOME THE CAUSE OF THE HARM. G(3). AFFIRMATIVE DEFENSES CROWN ASSERTS SEVERAL AFFIRMATIVE DEFENSES, EACH OF WHICH RELATES TO MR. SANSOM’S CONDUCT. YOU MAY CONSIDER THEM ONLY IF YOU FIRST FIND THAT THOSE ACTIONS EITHER WERE NOT REASONABLY FORESEEABLE, OR WERE OTHERWISE EXTRAORDINARY, AS EXPLAINED IN THESE INSTRUCTIONS. G(3)(A) ASSUMPTION OF THE RISK AS TO THE FIRST AFFIRMATIVE DEFENSE, CROWN CONTENDS THAT MR. SANSOM VOLUNTARILY ASSUMED THE RISK OF THE INJURY HE SUFFERED BY NOT USING A SAFETY BELT AND LANYARD. AS TO THIS DEFENSE, CROWN CARRIES THE BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT MR. SANSOM, IN DOING SO, VOLUNTARILY AND UNREASONABLY ACTED IN A CONSCIOUS DISREGARD OF A KNOWN RISK, AND THAT HIS ACTIONS WERE WHOLLY VOLUNTARY ON HIS PART, AND THAT HE HAD A CHOICE IN 22 ENCOUNTERING SUCH RISK. FURTHERMORE, IF YOU FIND THAT MR. SANSOM WAS REQUIRED TO USE THE STOCKPICKER IN THE COURSE OF HIS EMPLOYMENT, THAT MR. SANSOM USED THE STOCKPICKER IN A MANNER AS FURNISHED OR DIRECTED BY HIS EMPLOYER, AND THEREFORE, THAT MR. SANSOM HAD NO CHOICE IN ENCOUNTERING THE RISK INHERENT IN SO USING THE STOCKPICKER, THEN YOU MAY NOT FIND THAT THERE WAS AN ASSUMPTION OF RISK BY MR. SANSOM THAT COULD BAR HIM FROM RECOVERY. WHERE AN EMPLOYEE, IN DOING A JOB, IS REQUIRED TO USE EQUIPMENT AS FURNISHED OR DIRECTED BY THE EMPLOYER, THE DEFENSE OF ASSUMPTION OF THE RISK DOES NOT APPLY TO THE CASE. G(3)(B). HIGHLY RECKLESS BEHAVIOR AS TO THE SECOND AFFIRMATIVE DEFENSE, CROWN SEPARATELY CONTENDS THAT MR. SANSOM ENGAGED IN HIGHLY RECKLESS BEHAVIOR. TO MAKE OUT THIS DEFENSE, CROWN MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT MR. SANSOM KNEW OR HAD REASON TO KNOW OF FACTS WHICH CREATED A HIGH 23 DEGREE OF RISK OF PHYSICAL HARM TO HIMSELF AND THAT HE DELIBERATELY ACTED, OR FAILED TO ACT, IN CONSCIOUS DISREGARD OF THAT RISK. CROWN MUST ALSO PROVE THAT HIS SO ACTING, OR FAILING TO ACT, WAS SO EXTRAORDINARY AND UNFORESEEABLE THAT SUCH ACTIONS CONSTITUTED THE SUPERSEDING CAUSE OF THE INJURY MR. SANSOM SUSTAINED. G(3)(C). PRODUCT MISUSE AS TO THE THIRD AFFIRMATIVE DEFENSE, CROWN ALSO SEPARATELY CONTENDS THAT MR. SANSOM’S ACTIONS OR INACTIONS CONSTITUTED A MISUSE OF THE STOCKPICKER. IN THIS REGARD, CROWN CARRIES THE BURDEN OF PROVING BY A PREPONDERANCE OF THE EVIDENCE THAT MR. SANSOM’S ACTIONS WERE A USE OF THE STOCKPICKER THAT WAS SO UNFORESEEABLE AND OUTRAGEOUS THAT THEY CONSTITUTED THE SUPERSEDING CAUSE OF HIS INJURIES. H. DAMAGES INTRODUCTION THE FACT THAT I AM INSTRUCTING YOU ABOUT DAMAGES DOES NOT IMPLY ANY OPINION ON MY PART AS TO WHETHER DAMAGES SHOULD BE AWARDED IN THIS CASE. 24 IF YOU FIND THAT CROWN IS LIABLE TO THE SANSOMS, YOU MUST THEN AWARD THE AMOUNT OF MONEY DAMAGES YOU BELIEVE WILL FAIRLY AND ADEQUATELY COMPENSATE THE SANSOMS FOR ALL THE PHYSICAL AND FINANCIAL INJURY THEY HAVE SUSTAINED AS A RESULT OF THE OCCURRENCE. THE AMOUNT YOU AWARD TODAY MUST COMPENSATE THE SANSOMS COMPLETELY FOR DAMAGES SUSTAINED IN THE PAST, AS WELL AS DAMAGES THE SANSOMS WILL SUSTAIN IN THE FUTURE. IN CONSIDERING THESE INSTRUCTIONS REGARDING DAMAGES, PLEASE KEEP IN MIND THAT IN ANY EVENT, NO DAMAGES OF ANY TYPE ARE TO BE AWARDED UNLESS YOU FIND THAT CROWN IS LIABLE TO THE SANSOMS. I. LUMP SUM DAMAGES THE DAMAGES RECOVERABLE BY THE SANSOMS IN THIS CASE AND THE ITEMS THAT GO TO MAKE THEM UP, EACH OF WHICH I WILL DISCUSS SEPARATELY, ARE AS FOLLOWS: 1) PAST MEDICAL EXPENSES; 2) FUTURE MEDICAL EXPENSES; 3) PAST LOST EARNINGS AND LOST EARNINGS CAPACITY; 25 4) FUTURE LOST EARNINGS AND LOST EARNINGS CAPACITY; 5) PAIN AND SUFFERING; 6) EMBARRASSMENT AND HUMILIATION; 7) LOSS OF ABILITY TO ENJOY THE PLEASURES OF LIFE; 8) DISFIGUREMENT; AND 9) LOSS OF CONSORTIUM. IN THE EVENT THAT YOU FIND IN FAVOR OF THE SANSOMS, YOU WILL ADD THESE SUMS OF DAMAGE TOGETHER AND RETURN YOUR VERDICT IN A SINGLE, LUMP SUM. J. PAST MEDICAL EXPENSES THE PLAINTIFFS ARE ENTITLED TO BE COMPENSATED IN THE AMOUNT OF ALL MEDICAL EXPENSES REASONABLY INCURRED FOR THE DIAGNOSIS, TREATMENT, AND CURE OF MR. SANSOM'S INJURIES PRIOR TO TRIAL. THESE EXPENSES, AS ALLEGED BY PLAINTIFFS AND AGREED TO BY THE PARTIES, AMOUNT TO $179,073.84. K. FUTURE MEDICAL EXPENSES THE PLAINTIFFS ARE ENTITLED TO BE COMPENSATED FOR ALL MEDICAL EXPENSES THAT YOU FIND THEY WILL REASONABLY INCUR 26 IN THE FUTURE FOR THE TREATMENT AND CARE OF MR. SANSOM'S CONTINUING INJURIES. L. PAST LOST EARNINGS AND LOST EARNINGS CAPACITY THE PLAINTIFFS ARE ENTITLED TO BE COMPENSATED FOR THE AMOUNT OF EARNINGS THAT MR. SANSOM HAS LOST UP TO THE TIME OF THE TRIAL AS A RESULT OF HIS INJURIES. THIS AMOUNT IS THE DIFFERENCE BETWEEN WHAT HE COULD HAVE EARNED BUT FOR THE HARM AND LESS ANY SUM HE ACTUALLY EARNED IN ANY EMPLOYMENT. M. INCIDENTAL COSTS IN ADDITION TO THE COSTS OF MEDICAL CARE, THE PLAINTIFF, MR. SANSOM, IS ENTITLED TO BE COMPENSATED FOR ALL OTHER INCIDENTAL COSTS INCURRED AS A RESULT OF THE ACCIDENT, OR THAT YOU FIND WILL BE INCURRED IN THE FUTURE. THESE EXPENSES MAY INCLUDE COSTS INCURRED BECAUSE OF THE PLAINTIFF’S INABILITY TO PERFORM HOUSEHOLD SERVICES. 27 N. PRE-EXISTING CONDITION OR INJURY DAMAGES SHOULD BE AWARDED FOR ALL INJURIES CAUSED BY THE ACCIDENT EVEN IF: (1) THE INJURIES CAUSED BY THE ACCIDENT WERE MORE SEVERE THAN COULD HAVE BEEN FORESEEN BECAUSE OF THE PLAINTIFF’S PRIOR PHYSICAL CONDITIONS; OR (2) A PRE- EXISTING MEDICAL CONDITION WAS AGGRAVATED BY THE ACCIDENT. I REMIND YOU THAT THE DEFENDANT CAN BE HELD RESPONSIBLE ONLY FOR THOSE INJURIES OR THE AGGRAVATION OF A PRIOR INJURY OR CONDITION THAT YOU FIND WAS FACTUALLY CAUSED BY THE ACCIDENT. O. DAMAGES IN CASES OF DISPUTED LIABILITY AND DISPUTED EXTENT OF INJURY THE PARTIES AGREE THAT CHRISTOPHER SANSOM SUSTAINED SOME INJURY IN THE ACCIDENT. THEREFORE, IF YOU FIND THAT THE STOCKPICKER MANUFACTURED BY CROWN WAS DEFECTIVE AND THAT THE DEFECT WAS A FACTUAL CAUSE OF MR. SANSOM’S INJURIES, YOU MUST AWARD THE PLAINTIFFS SOME DAMAGES FOR THOSE INJURIES. 28 P. LOSS OF CONSORTIUM IF YOU FIND THAT THE STOCKPICKER WAS DEFECTIVELY DESIGNED, AND THAT SUCH DEFECTIVE DESIGN WAS A FACTUAL CAUSE OF HARM TO MR. SANSOM, THEN MR. SANSOM'S SPOUSE, MARIA SANSOM, IS ENTITLED TO BE COMPENSATED FOR THE PAST, PRESENT, AND FUTURE LOSS OF THE INJURED PARTY'S SERVICES TO HER AND THE PAST, PRESENT, AND FUTURE LOSS OF COMPANIONSHIP OF HER SPOUSE, MR. SANSOM. CONSORTIUM CLAIMS ARE LOSSES ARISING OUT OF THE MARITAL RELATIONSHIP. CONSORTIUM IS THE MARITAL FELLOWSHIP OF A HUSBAND AND A WIFE AND INCLUDES THE COMPANY, SOCIETY, COOPERATION, AFFECTION, AND AID OF THE OTHER IN THE MARITAL RELATIONSHIP. SUCH CLAIMS INCLUDE A LOSS OF SUPPORT, COMFORT, AND ASSISTANCE, THE LOSS OF ASSOCIATION, AND COMPANIONSHIP, AND THE LOSS OR TEMPORARY LOSS OF THE ABILITY TO ENGAGE IN SEXUAL RELATIONS. Q. LIFE EXPECTANCY IF YOU FIND THAT MR. SANSOM'S INJURIES WILL CONTINUE 29 BEYOND TODAY, YOU MUST DETERMINE THE LIFE EXPECTANCY OF MR. SANSOM. ACCORDING TO STATISTICS COMPILED BY THE UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, THE AVERAGE FUTURE LIFE EXPECTANCY OF ALL PERSONS OF MR. SANSOM'S AGE AT THE TIME OF ACCIDENT, SEX, AND RACE WAS 34 YEARS. THIS FIGURE IS OFFERED TO YOU ONLY AS A GUIDE, AND YOU ARE NOT BOUND TO ACCEPT IT IF YOU BELIEVE THAT MR. SANSOM WOULD HAVE LIVED LONGER OR LESS THAN THE AVERAGE INDIVIDUAL IN HIS CATEGORY. IN REACHING THIS DECISION, YOU ARE TO CONSIDER MR. SANSOM'S HEALTH PRIOR TO THE ACCIDENT, HIS MANNER OF LIVING, HIS PERSONAL HABITS, AND OTHER FACTORS THAT MAY HAVE AFFECTED THE DURATION OF HIS LIFE. R. FUTURE LOSS EARNINGS AND LOST EARNING CAPACITY THE PLAINTIFFS ARE ENTITLED TO BE COMPENSATED FOR ANY LOSS OR REDUCTION OF FUTURE EARNING CAPACITY THAT MR. SANSOM WILL SUFFER AS A RESULT OF A DECREASE IN OR LOSS OF FUTURE PRODUCTIVITY. 30 FUTURE PRODUCTIVITY IS THE INCREASE IN WAGES OR COMPENSATION THAT MR. SANSOM WOULD HAVE RECEIVED, HAD HE NOT SUSTAINED THE INJURY. THE SANSOMS HAVE SUBMITTED EVIDENCE THROUGH AN ACTUARY WHO HAS COMPUTED MR. SANSOM'S LOSS OF EARNINGS, ADDING A PRODUCTIVITY FACTOR. IF YOU BELIEVE THAT MR. SANSOM HAS SUSTAINED A LOSS OF PRODUCTIVITY, YOU MAY USE THIS EVIDENCE AS A GUIDE IN REACHING YOUR DECISION AS TO THE AMOUNT OF THE LOSS OR REDUCTION OF MR. SANSOM'S FUTURE EARNING CAPACITY. THE PLAINTIFF IS ENTITLED TO BE COMPENSATED FOR ANY LOSS OR REDUCTION OF FUTURE EARNING CAPACITY THAT WILL RESULT FROM THE HARM SUSTAINED. IN ORDER TO DETERMINE THIS AMOUNT, YOU MUST FIRST DETERMINE: 1) THE TOTAL AMOUNTS THAT THE PLAINTIFF WOULD HAVE EARNED DURING HIS LIFE EXPECTANCY IF THE INJURY HAD NOT OCCURRED; AND YOU MUST DETERMINE 2) THE TOTAL AMOUNTS THAT THE PLAINTIFF PROBABLY WILL BE ABLE TO EARN DURING HIS LIFE EXPECTANCY. 31 THE DIFFERENCE BETWEEN THESE TWO AMOUNTS IS THE PLAINTIFF'S LOSS OF FUTURE EARNING CAPACITY DUE TO THE INJURY. THE FACTORS YOU SHOULD CONSIDER IN DETERMINING THESE AMOUNTS ARE: 1) THE TYPE OF WORK THAT THE PLAINTIFF HAS DONE IN THE PAST OR WAS CAPABLE OF DOING; 2) THE TYPE OF WORK, IN VIEW OF THE PLAINTIFF'S PHYSICAL CONDITION, EDUCATION, EXPERIENCE, AND AGE, THAT THE PLAINTIFF WOULD HAVE BEEN DOING IN THE FUTURE HAD THE HARM NOT BEEN SUSTAINED; 3) THE TYPE OF WORK, BASED UPON THE PLAINTIFF'S PHYSICAL CONDITION, EDUCATION, EXPERIENCE, AND AGE, THAT THE PLAINTIFF WILL PROBABLY BE ABLE TO DO IN THE FUTURE, HAVING SUSTAINED THE INJURY; 4) THE EXTENT AND DURATION OF THE PLAINTIFF'S HARM; AND 5) ANY OTHER MATTERS IN EVIDENCE THAT YOU FIND REASONABLY RELEVANT TO THIS QUESTION. THE AMOUNT OF LOST FUTURE EARNING CAPACITY SHOULD BE 32 EXPRESSED BY YOU IN A DOLLAR AMOUNT. S. PAST AND FUTURE – NONECONOMIC LOSS THE PLAINTIFF, MR. SANSOM, HAS MADE A CLAIM FOR A DAMAGE AWARD FOR PAST AND FOR FUTURE NONECONOMIC LOSS. THERE ARE FOUR ITEMS THAT MAY MAKE UP A DAMAGE AWARD FOR NONECONOMIC LOSS, BOTH PAST AND FUTURE IN THE EVENT THAT YOU FIND THAT THE STOCKPICKER WAS DEFECTIVELY DESIGNED AND THAT SUCH DEFECTIVE DESIGN WAS A FACTUAL CAUSE OF MR. SANSOM’S INJURIES: (1) PAIN AND SUFFERING; (2) EMBARRASSMENT AND HUMILIATION; (3) LOSS OF ABILITY TO ENJOY THE PLEASURES OF LIFE; AND (4) DISFIGUREMENT. FIRST, MR. SANSOM MUST HAVE EXPERIENCED PAIN AND SUFFERING IN ORDER TO BE ABLE TO CLAIM A DAMAGE AWARD FOR THIS TYPE OF PAST OR FUTURE NONECONOMIC LOSS. YOU ARE INSTRUCTED THAT MR. SANSOM IS ENTITLED TO BE FAIRLY AND ADEQUATELY COMPENSATED FOR ALL PHYSICAL PAIN, MENTAL ANGUISH, DISCOMFORT, INCONVENIENCE, AND DISTRESS THAT YOU FIND MR. SANSOM HAS ENDURED FROM THE TIME OF MR. SANSOM'S 33 INJURY UNTIL TODAY AND THAT HE IS ALSO ENTITLED TO BE FAIRLY AND ADEQUATELY COMPENSATED FOR ALL PHYSICAL PAIN, MENTAL ANGUISH, DISCOMFORT, INCONVENIENCE, AND DISTRESS YOU FIND HE WILL ENDURE IN THE FUTURE AS A RESULT OF MR. SANSOM'S INJURIES. SECOND, THE PLAINTIFF, MR. SANSOM, MUST HAVE EXPERIENCED EMBARRASSMENT AND HUMILIATION IN ORDER TO CLAIM DAMAGES FOR THAT TYPE OF NONECONOMIC LOSS. HE IS ENTITLED TO BE FAIRLY AND ADEQUATELY COMPENSATED FOR SUCH EMBARRASSMENT AND HUMILIATION AS YOU BELIEVE MR. SANSOM HAS ENDURED AND WILL CONTINUE TO ENDURE IN THE FUTURE AS A RESULT OF HIS INJURIES. THIRD, THE PLAINTIFF, MR. SANSOM, MUST SUFFER LOSS OF ENJOYMENT OF LIFE IN ORDER TO CLAIM DAMAGES FOR THAT TYPE OF LOSS. MR. SANSOM IS ENTITLED TO BE FAIRLY AND ADEQUATELY COMPENSATED FOR THE LOSS OF HIS ABILITY TO ENJOY ANY OF THE PLEASURES OF LIFE AS A RESULT OF THE INJURIES FROM THE TIME OF THE INJURIES UNTIL TODAY AND TO BE FAIRLY AND ADEQUATELY COMPENSATED FOR THE LOSS OF HIS ABILITY TO ENJOY ANY OF THE 34 PLEASURES OF LIFE IN THE FUTURE AS A RESULT OF HIS INJURIES. FOURTH, THE DISFIGUREMENT THAT MR. SANSOM HAS SUSTAINED IS A SEPARATE ITEM OF DAMAGES RECOGNIZED BY THE LAW. THEREFORE, IN ADDITION TO ANY SUMS YOU MAY AWARD FOR PAIN AND SUFFERING, FOR EMBARRASSMENT AND HUMILIATION, AND FOR LOSS OF ENJOYMENT OF LIFE, HE IS ENTITLED TO BE FAIRLY AND ADEQUATELY COMPENSATED FOR ANY DISFIGUREMENT MR. SANSOM HAS SUFFERED FROM THE TIME OF THE INJURY TO THE PRESENT AND THAT HE WILL CONTINUE TO SUFFER DURING THE FUTURE DURATION OF HIS LIFE. IN CONSIDERING MR. SANSOM’S CLAIMS FOR A DAMAGE AWARD FOR PAST AND FUTURE NONECONOMIC LOSS, YOU WILL CONSIDER THE FOLLOWING FACTORS: (1) THE AGE OF MR. SANSOM; (2) THE SEVERITY OF THE INJURIES; (3) WHETHER THE INJURIES ARE TEMPORARY OR PERMANENT; (4) THE EXTENT TO WHICH THE INJURIES AFFECT THE ABILITY OF MR. SANSOM TO PERFORM BASIC ACTIVITIES OF DAILY LIVING AND OTHER ACTIVITIES IN WHICH MR. SANSOM PREVIOUSLY ENGAGED; (5) THE DURATION AND NATURE OF MEDICAL TREATMENT; (6) THE DURATION AND EXTENT OF THE 35 PHYSICAL PAIN AND MENTAL ANGUISH THAT MR. SANSOM HAS EXPERIENCED IN THE PAST AND WILL EXPERIENCE IN THE FUTURE; (7) THE HEALTH AND PHYSICAL CONDITION OF MR. SANSOM PRIOR TO THE INJURIES; AND (8) IN THE CASE OF DISFIGUREMENT, THE NATURE OF THE DISFIGUREMENT AND THE CONSEQUENCES FOR MR. SANSOM. T. DAMAGE INSTRUCTIONS GENERALLY (1) I REMIND YOU OF THE SAME POINT THAT I MADE AT THE START OF THE TRIAL, THAT IS JUST BECAUSE I AM INSTRUCTING YOU ON HOW TO AWARD DAMAGES DOES NOT MEAN THAT I HAVE ANY OPINION ON WHETHER OR NOT CROWN EQUIPMENT CORPORATION SHOULD BE HELD LIABLE AND DAMAGES AWARDED. INSTRUCTIONS ON DAMAGES ARE GIVEN FOR YOUR GUIDANCE, IN THE EVENT THAT YOU DO FIND IN FAVOR OF PLAINTIFFS IN ACCORDANCE WITH THE OTHER INSTRUCTIONS PREVIOUSLY GIVEN TO YOU. (2) THE MERE FACT THAT THE COURT TAKES UP THE QUESTION OF DAMAGES SHOULD NOT BE TAKEN BY YOU AS AN INDICATION THAT YOU SHOULD AWARD DAMAGES TO THE PLAINTIFFS. THE COURT DOES NOT KNOW HOW YOU WILL FIND WITH RESPECT TO THE LIABILITY 36 ISSUES AND MUST THEREFORE INSTRUCT YOU AT THIS TIME AS TO THE LAW APPLICABLE TO DAMAGES. (3) IN MAKING YOUR DECISION AS TO WHETHER OR NOT THE DEFENDANTS ARE LIABLE TO THE PLAINTIFFS, YOU MAY NOT PERMIT SYMPATHY FOR ANY PARTY IN THIS CASE TO INFLUENCE YOUR DECISION, EVEN IN THE SLIGHTEST DEGREE. IN DETERMINING THE AMOUNT OF DAMAGES, THERE SHOULD BE NO ATTEMPT BY YOU TO PUNISH OR REWARD ANY PARTY AND YOUR VERDICT SHOULD NOT BE INFLUENCED BY SYMPATHY OR PREJUDICE FOR OR AGAINST ANY PARTY. (4) THE MERE FACT THAT AN ACCIDENT HAS OCCURRED OR THAT THE PLAINTIFF SUSTAINED DAMAGES DOES NOT PROVE OR GIVE RISE TO ANY INFERENCE THAT THE DEFENDANTS ARE RESPONSIBLE FOR THOSE DAMAGES. (5) IN DETERMINING THE AMOUNT OF ANY DAMAGES THAT YOU DECIDE TO AWARD, YOU SHOULD BE GUIDED BY COMMON SENSE. YOU MUST USE SOUND JUDGMENT IN FIXING AN AWARD OF DAMAGES, DRAWING REASONABLE INFERENCES FROM THE FACTS IN EVIDENCE. YOU MAY NOT AWARD DAMAGES BASED ON SYMPATHY, 37 SPECULATION, OR GUESSWORK. FINAL INSTRUCTIONS: WHEN YOU RETIRE TO THE JURY ROOM TO DELIBERATE, YOU MAY TAKE WITH YOU THESE INSTRUCTIONS, YOUR NOTES, AND THE EXHIBITS THAT THE COURT HAS ADMITTED INTO EVIDENCE. YOU SHOULD SELECT ONE MEMBER OF THE JURY AS YOUR FOREPERSON. THAT PERSON WILL PRESIDE OVER THE DELIBERATIONS AND SPEAK FOR YOU HERE IN OPEN COURT. YOU HAVE TWO MAIN DUTIES AS JURORS. THE FIRST ONE IS TO DECIDE WHAT THE FACTS ARE FROM THE EVIDENCE THAT YOU SAW AND HEARD HERE IN COURT. DECIDING WHAT THE FACTS ARE IS YOUR JOB, NOT MINE, AND NOTHING THAT I HAVE SAID OR DONE DURING THIS TRIAL WAS MEANT TO INFLUENCE YOUR DECISION ABOUT THE FACTS IN ANY WAY. YOUR SECOND DUTY IS TO TAKE THE LAW THAT I GIVE YOU, APPLY IT TO THE FACTS, AND DECIDE WHETHER, UNDER THE APPROPRIATE BURDEN OF PROOF, THE PARTIES HAVE ESTABLISHED THEIR CLAIMS OR DEFENSES. IT IS MY JOB TO INSTRUCT YOU ABOUT THE LAW, AND YOU ARE BOUND BY THE OATH THAT YOU TOOK AT THE BEGINNING OF THE TRIAL TO FOLLOW THE INSTRUCTIONS THAT I GIVE 38 YOU, EVEN IF YOU PERSONALLY DISAGREE WITH THEM. THIS INCLUDES THE INSTRUCTIONS THAT I GAVE YOU BEFORE AND DURING THE TRIAL, AND THESE INSTRUCTIONS. ALL THE INSTRUCTIONS ARE IMPORTANT, AND YOU SHOULD CONSIDER THEM TOGETHER AS A WHOLE. PERFORM THESE DUTIES FAIRLY. DO NOT LET ANY BIAS, SYMPATHY OR PREJUDICE THAT YOU MAY FEEL TOWARD ONE SIDE OR THE OTHER INFLUENCE YOUR DECISION IN ANY WAY. AS JURORS, YOU HAVE A DUTY TO CONSULT WITH EACH OTHER AND TO DELIBERATE WITH THE INTENTION OF REACHING A VERDICT. EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER A FULL AND IMPARTIAL CONSIDERATION OF ALL OF THE EVIDENCE WITH YOUR FELLOW JURORS. LISTEN TO EACH OTHER CAREFULLY. IN THE COURSE OF YOUR DELIBERATIONS, YOU SHOULD FEEL FREE TO RE-EXAMINE YOUR OWN VIEWS AND TO CHANGE YOUR OPINION BASED UPON THE EVIDENCE. BUT YOU SHOULD NOT GIVE UP YOUR HONEST CONVICTIONS ABOUT THE EVIDENCE JUST BECAUSE OF THE OPINIONS OF YOUR FELLOW JURORS. NOR SHOULD YOU CHANGE YOUR MIND JUST FOR THE PURPOSE OF OBTAINING ENOUGH 39 VOTES FOR A VERDICT. WHEN YOU START DELIBERATING, DO NOT TALK TO THE JURY OFFICER (MR. BABIK), TO ME OR TO ANYONE BUT EACH OTHER ABOUT THE CASE. IF YOU HAVE ANY QUESTIONS OR MESSAGES FOR ME, YOU MUST WRITE THEM DOWN ON A PIECE OF PAPER, HAVE THE FOREPERSON SIGN THEM, AND GIVE THEM TO MR. BABIK. HE WILL GIVE THEM TO ME, AND I WILL RESPOND AS SOON AS I CAN. I MAY HAVE TO TALK TO THE LAWYERS ABOUT WHAT YOU HAVE ASKED, SO IT MAY TAKE SOME TIME TO GET BACK TO YOU. YOU SHOULD CONTINUE YOUR DELIBERATIONS IN THE MEANTIME. ONE MORE THING ABOUT MESSAGES. NEVER WRITE DOWN OR TELL ANYONE ANYTHING WHICH COULD REVEAL HOW YOU STAND ON YOUR VOTES. FOR EXAMPLE, DO NOT WRITE DOWN OR TELL ANYONE THAT A CERTAIN NUMBER IS VOTING ONE WAY OR ANOTHER. YOUR INDIVIDUAL VOTES SHOULD STAY SECRET. YOUR VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT OF EACH JUROR. IN ORDER FOR YOU AS A JURY TO RETURN A VERDICT, EACH JUROR MUST AGREE TO THE VERDICT. YOUR VERDICT MUST BE UNANIMOUS. 40 YOUR VERDICT IN THIS CASE WILL CONSIST OF ANSWERS TO WRITTEN QUESTIONS WHICH I WILL PROVIDE TO YOU. THIS METHOD IS COMMON IN CIVIL CASES SUCH AS THE ONE WE HAVE BEEN TRYING HERE, AND I HAVE DETERMINED THAT IS APPROPRIATE FOR THIS CASE AND THE QUESTIONS ARE DESIGNED TO AID YOU IN YOUR DELIBERATIONS. EACH ANSWER ON THE VERDICT FORM MUST BE UNANIMOUS. THE QUESTIONS YOU ARE TO ANSWER ARE AS FOLLOWS: (JUDGE READ VERDICT SLIP) YOU WILL TAKE THIS VERDICT FORM TO THE JURY ROOM AND WHEN YOU HAVE REACHED UNANIMOUS AGREEMENT AS TO YOUR VERDICT, THAT MEANS THAT YOU HAVE ANSWERED EACH QUESTION UNANIMOUSLY, YOU WILL FILL IT IN, DATE IT, AND YOU MUST ALL SIGN THE FORM. YOU WILL THEN SUMMON MR. BABIK. UNLESS I DIRECT YOU OTHERWISE, DO NOT REVEAL YOUR ANSWERS UNTIL YOU ARE DISCHARGED. AFTER YOU HAVE REACHED A VERDICT, YOU ARE NOT REQUIRED TO TALK WITH ANYONE ABOUT THE CASE UNLESS I ORDER YOU TO DO SO. 41 ONCE AGAIN, I WANT TO REMIND YOU THAT NOTHING ABOUT MY INSTRUCTIONS AND NOTHING ABOUT THE VERDICT FORM IS INTENDED TO SUGGEST OR CONVEY IN ANY WAY OR MANNER WHAT I THINK YOUR VERDICT SHOULD BE. IT IS YOUR SOLE AND EXCLUSIVE DUTY AND RESPONSIBILITY TO DETERMINE THE VERDICT. IF YOU HAVE NOT REACHED A VERDICT BY 4:30 P.M. TODAY (AND IT IS POSSIBLE THAT YOU WILL NOT), YOU MAY CONTINUE TO DELIBERATE LATER, BUT ONLY IF ALL OF YOU UNANIMOUSLY AGREE AND YOUR FOREPERSON SO ADVISES ME IN WRITING. IF YOU DO NOT UNANIMOUSLY AGREE TO CONTINUE DELIBERATIONS PAST THAT TIME TODAY, THEN YOU MAY LEAVE AT 4:30 P.M. AND REPORT MONDAY MORNING AT 9:00 A.M. TO THE JURY ROOM. DURING YOUR DELIBERATIONS, YOU MUST NOT COMMUNICATE WITH OR PROVIDE ANY INFORMATION TO ANYONE BY ANY MEANS ABOUT THIS CASE. YOU MAY NOT USE ANY ELECTRONIC DEVICE OR MEDIA, SUCH AS THE TELEPHONE, A CELL PHONE, SMART PHONE, iPHONE , BLACKBERRY OR COMPUTER, THE INTERNET, ANY INTERNET SERVICE, ANY TEXT OR INSTANT MESSAGING SERVICE, ANY INTERNET CHAT ROOM, BLOG OR WEBSITE SUCH AS FACEBOOK, MySPACE, 42 LINKED-IN, YOU-TUBE, OR TWITTER, TO COMMUNICATE TO ANYONE ANY INFORMATION ABOUT THIS CASE OR TO CONDUCT ANY RESEARCH ABOUT THIS CASE UNTIL I ACCEPT YOUR VERDICT. IN OTHER WORDS, YOU CANNOT TALK TO ANYONE ON THE PHONE, CORRESPOND WITH ANYONE, OR ELECTRONICALLY COMMUNICATE WITH ANYONE ABOUT THIS CASE. YOU CAN ONLY DISCUSS THE CASE IN THE JURY ROOM WITH YOUR FELLOW JURORS DURING DELIBERATIONS. I EXPECT YOU WILL INFORM ME AS SOON AS YOU BECOME AWARE OF YOUR OR ANOTHER JUROR'S VIOLATION OF THESE INSTRUCTIONS. YOU MAY NOT HAVE ANY SUCH DEVICE WITH YOU DURING DELIBERATIONS. MR. BABIK WILL KEEP THEM SECURE WHILE YOU ARE DELIBERATING. YOU MAY NOT USE THESE ELECTRONIC MEANS TO INVESTIGATE OR COMMUNICATE ABOUT THE CASE BECAUSE IT IS IMPORTANT THAT YOU DECIDE THE CASE BASED SOLELY ON THE EVIDENCE PRESENTED IN THIS COURTROOM. INFORMATION ON THE INTERNET OR AVAILABLE THROUGH SOCIAL MEDIA MIGHT BE WRONG, INCOMPLETE, OR INACCURATE. YOU ARE ONLY PERMITTED TO DISCUSS THE CASE WITH YOUR FELLOW JURORS DURING DELIBERATIONS BECAUSE THEY HAVE 43 SEEN AND HEARD THE SAME EVIDENCE YOU HAVE. IN OUR JUDICIAL SYSTEM, IT IS IMPORTANT THAT YOU ARE NOT INFLUENCED BY ANYTHING OR ANYONE OUTSIDE OF THIS COURTROOM. OTHERWISE, YOUR DECISION MAY BE BASED ON INFORMATION KNOWN ONLY BY YOU AND NOT YOUR FELLOW JURORS OR THE PARTIES IN THE CASE. THIS WOULD UNFAIRLY AND ADVERSELY IMPACT THE JUDICIAL PROCESS. PLEASE REMEMBER MY INSTRUCTION TO NOT READ ABOUT THE CASE SHOULD THERE BE ANY ARTICLES IN THE NEWSPAPER AND DO NOT LISTEN TO ANY RADIO BROADCASTS OR TELEVISION BROADCASTS SHOULD THERE BE ANY CONCERNING THIS CASE. YOU WILL NOTE FROM THE OATH ABOUT TO BE TAKEN BY MY COURTROOM DEPUTY, MR. BABIK, AND OTHER MEMBERS OF MY STAFF THAT THEY TOO, AS WELL AS ALL OTHERS, ARE FORBIDDEN TO COMMUNICATE IN ANY WAY OR MANNER WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE. AT THIS TIME, YOU MAY RETIRE TO THE JURY ROOM TO DELIBERATE. 44

=== Civil Opening Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA CHRISTOPHER SANSOM and MARIA SANSOM, husband and wife, Plaintiffs, v. CROWN EQUIPMENT CORPORATION and CROWN LIFT TRUCKS, Defendants. Civil Action No. 2:10-cv-00958 Judge Mark R. Hornak COURT’S PROPOSED PRELIMINARY JURY INSTRUCTIONS TO COUNSEL: ARE YOU SATISFIED WITH THE JURY AS SEATED? TO COURTROOM DEPUTY: PLEASE SWEAR IN THE JURY. YOU HAVE NOW BEEN SWORN AS THE JURY TO SIT IN DETERMINATION OF THIS CIVIL CASE IN WHICH PLAINTIFFS, CHRISTOPHER SANSOM AND MARIA SANSOM, HIS WIFE, HAVE SUED THE DEFENDANT, CROWN EQUIPMENT CORPORATION (“CROWN”), FOR MONETARY DAMAGES CLAIMING THAT THE DESIGN OF A STOCKPICKER MANUFACTURED BY CROWN WAS THE CAUSE OF INJURIES SUFFERED WHEN MR. SANSOM FELL FROM THAT DEVICE. 1 THIS WILL BE A TRIAL LASTING APPROXIMATELY FIVE (5) TO SEVEN (7) TRIAL DAYS - TODAY THROUGH FRIDAY OF THIS WEEK OR POSSIBLY TUESDAY OF NEXT WEEK. WE WILL START TRIAL EACH DAY AT 9:00 A.M. AND WILL TAKE A LUNCHEON RECESS BETWEEN 12:00 -12:30 P.M. FOR AN HOUR OR SO. WE WILL ADJOURN FOR THE DAY AT APPROXIMATELY 4:30 P.M. WE WILL TAKE A 10-15 MINUTE RECESS DURING EACH OF THE MORNING AND AFTERNOON SESSIONS OF COURT. IT IS IMPORTANT, LADIES AND GENTLEMEN, THAT EACH OF YOU BE HERE ABSOLUTELY NO LATER THAN 8:45 EACH MORNING, BECAUSE ALL JURORS MUST HEAR ALL OF THE EVIDENCE IN THE CASE. IF ANY ONE PERSON IS LATE, THE OTHER JURORS, THE PARTIES, THE LAWYERS, THE WITNESSES AND THE COURT MUST WAIT UNTIL ALL JURORS ARE HERE TO START THE DAY'S TRIAL SESSION. THEREFORE, YOU ARE REQUIRED TO BE HERE PROMPTLY ON TIME FOR EACH MORNING AND AFTERNOON SESSION. THERE MAY BE TIMES WHEN WE MAY NOT BE ABLE TO START AT 9:00 AM SHARP BECAUSE OF SOMETHING I MUST DISCUSS WITH THE ATTORNEYS OUTSIDE OF YOUR HEARING, OR BECAUSE OF AN EMERGENCY IN ANOTHER CASE 2 UNRELATED TO THIS ONE WHICH MAY REQUIRE MY IMMEDIATE ATTENTION. YOU MAY HAVE TO WAIT IN THE JURY ROOM FOR A SHORT WHILE BEFORE WE GET UNDERWAY. PLEASE UNDERSTAND, HOWEVER, THAT THIS TRIAL IS NOW MY NUMBER ONE PRIORITY FROM THIS MOMENT FORWARD. I WILL TRY TO KEEP ANY INTERRUPTIONS TO A MINIMUM, AND AS BRIEF AS I POSSIBLY CAN TO MAINTAIN OUR DAILY TIME SCHEDULE. BEFORE WE BEGIN, I WANT TO TELL YOU HOW THE TRIAL WILL BE CONDUCTED AND EXPLAIN WHAT WE EACH WILL BE DOING - - YOU (THE JURORS), THE LAWYERS FOR THE PARTIES, AND ME AS THE JUDGE. AT THE END OF THE TRIAL, I WILL GIVE YOU MORE DETAILED GUIDANCE ON THE LAW AND HOW YOU ARE TO GO ABOUT REACHING YOUR DECISION. BUT NOW I SIMPLY WANT TO EXPLAIN TO YOU HOW THE TRIAL WILL PROCEED. THE PLAINTIFFS, CHRISTOPHER SANSOM AND MARIA SANSOM, ARE THE PARTIES WHO HAVE BROUGHT THE LAWSUIT. THE DEFENDANT, CROWN EQUIPMENT CORPORATION, IS THE PARTY WHO RESISTS THE LAWSUIT AND DEFENDS AGAINST THE PLAINTIFFS' CLAIM. 3 DURING JURY SELECTION YOU WERE INTRODUCED TO THE LAWYERS WHO REPRESENT THE PLAINTIFFS AND DEFENDANT, AND YOU WILL BE HEARING FROM THEM SOON. THE FIRST STEP IN THE TRIAL WILL BE THE OPENING STATEMENTS. THE PLAINTIFFS' ATTORNEY WILL SOON ADDRESS YOU WITH AN OPENING STATEMENT TO OUTLINE THE CLAIMS IN THIS CASE. THE ATTORNEY FOR THE DEFENDANT WILL THEN MAKE AN OPENING STATEMENT IMMEDIATELY AFTER THE PLAINTIFFS' OPENING STATEMENT. BE ADVISED THAT THE OPENING STATEMENTS OF THE LAWYERS ARE NOT EVIDENCE; THEIR PURPOSE IS TO DESCRIBE THEIR CLIENTS' POSITION AND HELP YOU UNDERSTAND WHAT THE EVIDENCE WILL BE AND WHAT THE PARTIES WILL TRY TO DEMONSTRATE TO YOU. NEXT, THE PLAINTIFFS THROUGH THEIR ATTORNEY WILL OFFER EVIDENCE IN AN ATTEMPT TO PROVE THEIR CASE. THE PLAINTIFFS' EVIDENCE WILL CONSIST OF TESTIMONY FROM WITNESSES, AS WELL AS EXHIBITS SUCH AS DOCUMENTS, PHOTOGRAPHS, AND THE LIKE. AFTER THE PLAINTIFFS' EVIDENCE HAS BEEN PRESENTED, THE DEFENDANTS ATTORNEY WILL LIKEWISE 4 PRESENT TESTIMONY AND EVIDENCE ON BEHALF OF HIS CLIENT. THE DIRECT EXAMINATION OF EACH WITNESS IS CONDUCTED BY THE ATTORNEY WHO CALLED THE WITNESS TO THE WITNESS STAND AND EACH WITNESS MAY ALSO BE CROSS-EXAMINED BY OPPOSING COUNSEL. I MAY ASK QUESTIONS OF A WITNESS IN ORDER TO OBTAIN INFORMATION OR BRING OUT SOME FACTS NOT FULLY DEVELOPED BY THE TESTIMONY. YOU, HOWEVER, ARE NOT PERMITTED TO ASK QUESTIONS OF WITNESSES OR TO SPEAK TO THE WITNESSES AT ANY TIME. YOU WILL HEAR WHAT IS CALLED "DIRECT EVIDENCE" IN THIS CASE, AS WELL AS WHAT IS KNOWN AS "CIRCUMSTANTIAL EVIDENCE." DIRECT EVIDENCE IS DIRECT PROOF OF A FACT, SUCH AS TESTIMONY FROM A WITNESS ABOUT WHAT THE WITNESS ACTUALLY KNOWS, SAID OR HEARD OR SAW OR DID. CIRCUMSTANTIAL EVIDENCE OR INDIRECT EVIDENCE IS SIMPLY PROOF OF ONE OR MORE FACTS FROM WHICH YOU COULD FIND ANOTHER FACT. FOR EXAMPLE, ALTHOUGH YOU CAN HARDLY SEE OUTSIDE FROM THIS ROOM, IF ONE OR MORE PERSONS WALKED IN WITH A 5 WET TRENCH COAT OR DRIPPING UMBRELLA, IT WOULD BE REASONABLE AND LOGICAL FOR ONE TO CONCLUDE FROM THAT CIRCUMSTANTIAL EVIDENCE THAT IT HAD BEEN RAINING OUTSIDE. YOU MAY ALSO HEAR FROM ONE OR MORE WITNESSES WHO WILL GIVE OPINIONS ABOUT MATTERS REQUIRING SPECIAL KNOWLEDGE OR SKILL. YOU SHOULD JUDGE THIS TESTIMONY IN THE SAME WAY THAT YOU JUDGE THE TESTIMONY OF ANY OTHER WITNESS. THE FACT THAT SUCH PERSON HAS GIVEN AN OPINION DOES NOT MEAN THAT YOU ARE REQUIRED TO ACCEPT IT. GIVE THE TESTIMONY WHATEVER WEIGHT YOU THINK IT DESERVES, CONSIDERING THE REASONS GIVEN FOR THE OPINION, THE WITNESS’S QUALIFICATIONS, AND ALL OF THE OTHER EVDIENCE IN THE CASE. THE EVIDENCE IN THIS CASE WILL CONSIST NOT ONLY OF TESTIMONY FROM THE WITNESSES AND DOCUMENTS WHICH WILL BE SHOWN TO YOU, BUT EVIDENCE ALSO INCLUDES SUCH FAIR AND REASONABLE INFERENCES AS MAY PROPERLY FLOW FROM FACTS WHICH ARE NOT DISPUTED OR WHICH YOU BELIEVE TO BE TRUE. YOU SHOULD CONSIDER 6 BOTH KINDS OF EVIDENCE. THE LAW MAKES NO DISTINCTION BETWEEN THE WEIGHT TO BE GIVEN TO EITHER DIRECT OR CIRCUMSTANTIAL EVIDENCE. YOU ARE TO DECIDE HOW MUCH WEIGHT TO GIVE ANY EVIDENCE. IN OTHER WORDS, YOU, LADIES AND GENTLEMEN OF THE JURY, MAY DRAW UPON YOUR OWN EXPERIENCES IN LIFE AND YOUR OWN COMMON SENSE IN INTERPRETING THE FACTS WHICH WILL BE PRESENTED TO YOU BY THE PARTIES IN THIS CASE. AFTER ALL THE TESTIMONY AND EVIDENCE ON BOTH SIDES HAS BEEN PRESENTED, THE ATTORNEYS WILL MAKE THEIR CLOSING ARGUMENTS TO YOU. IN THESE ARGUMENTS, THE ATTORNEYS WILL GIVE YOU THEIR VIEWS OF WHAT THE EVIDENCE PROVES ON THE QUESTIONS THAT YOU HAVE TO DECIDE AND THESE ARGUMENTS SHOULD BE GIVEN DUE CONSIDERATION, BUT THE ARGUMENTS THEMSELVES AGAIN ARE NOT EVIDENCE. ONLY THE EVIDENCE WHICH HAS BEEN ADMITTED DURING THE TRIAL CAN BE CONSIDERED BY YOU IN DETERMINING THE OPERATIVE FACTS OF THIS MATTER. IN THE FINAL PHASE OF THE TRIAL I WILL INSTRUCT YOU ABOUT THE RULES OF LAW WHICH ARE TO GUIDE YOU IN REACHING YOUR VERDICT. AFTER HEARING MY 7 INSTRUCTIONS, YOU WILL LEAVE THE COURTROOM AND RETIRE TOGETHER TO MAKE YOUR DECISION. YOUR DELIBERATIONS WILL BE SECRET. YOU WILL NEVER HAVE TO EXPLAIN YOUR VERDICT TO ANYONE. NOW THAT I HAVE DESCRIBED THE TRIAL IN GENERAL, LET ME EXPLAIN THE JOBS THAT WE EACH ARE TO PERFORM DURING THE TRIAL. I WILL DECIDE WHICH RULES OF LAW APPLY TO THIS CASE. I WILL DECIDE THIS IN RESPONSE TO QUESTIONS RAISED BY THE ATTORNEYS AS WE GO ALONG AND ALSO IN THE FINAL INSTRUCTIONS WHICH I WILL GIVE TO YOU AFTER THE EVIDENCE AND ATTORNEY ARGUMENTS ARE COMPLETED. THE ADMISSION OF EVIDENCE IN COURT IS GOVERNED BY RULES OF LAW. DURING THE TRIAL, THE ATTORNEYS MAY DEEM IT NECESSARY TO MAKE OBJECTIONS TO CERTAIN TESTIMONY OR EVIDENCE AND IT THEN BECOMES MY DUTY TO RULE ON THOSE OBJECTIONS AND TO DECIDE WHETHER CERTAIN TESTIMONY OR OTHER EVIDENCE CAN BE PERMITTED FOR YOUR CONSIDERATION. YOU MUST NOT CONCERN YOURSELF WITH THE ATTORNEYS' OBJECTIONS OR THE REASONS FOR MY RULINGS. YOU MUST NOT CONSIDER 8 TESTIMONY OR EXHIBITS TO WHICH I HAVE SUSTAINED AN OBJECTION, OR WHICH I HAVE ORDERED STRICKEN FROM THE RECORD. NONE OF MY RULINGS SHOULD BE REGARDED BY YOU AS AN INDICATION OF MY OPINION AS TO WHAT YOUR FINDINGS SHOULD BE. YOU ARE NOT TO CONSIDER THE FACT THAT AN ATTORNEY OBJECTS TO CERTAIN EVIDENCE AS BEING AN ATTEMPT BY THAT ATTORNEY OR HIS CLIENT TO WITHHOLD ANY EVIDENCE FROM YOU WHICH YOU NEED TO PROPERLY DETERMINE THE CASE. THE ONLY WAY THAT I CAN RULE ON THE LEGAL EFFECT OF CERTAIN EVIDENCE IS IF THE ATTORNEY RAISES AN OBJECTION. IF THE ATTORNEY DOES NOT RAISE AN OBJECTION AT THE APPROPRIATE TIME, THE ATTORNEY IS NOT FULFILLING HIS OR HER DUTY TO THE CLIENT OR TO THE COURT. THEREFORE, YOU SHOULD NOT HOLD IT AGAINST AN ATTORNEY OR THE ATTORNEY'S CLIENT IF OBJECTIONS TO EVIDENCE ARE MADE. ALSO, FROM TIME TO TIME, THERE MAY BE CONFERENCES ON OBJECTIONS AT WHAT WE CALL "SIDE BAR." THE ATTORNEYS AND I WILL MEET AT THE FAR END OF THE BENCH TO DISCUSS LEGAL POINTS WHICH MAY BE 9 INVOLVED IN THE EVIDENCE. I WILL TRIGGER A “WHITE NOSIE” DEVICE DURING THOSE CONFERENCES. AGAIN, THIS IS NOT AN ATTEMPT TO WITHHOLD INFORMATION FROM YOU WHICH YOU SHOULD HAVE, BUT RATHER, IT IS A MEANS OF INSURING THAT THE TRIAL INCLUDES ONLY THE LEGALLY ADMISSIBLE EVIDENCE UPON WHICH YOU ARE TO BASE YOUR DECISION. I MAY NOT ALWAYS GRANT AN ATTORNEY’S REQUEST FOR A CONFERENCE. DO NOT CONSIDER MY GRANTING OR DENYING A REQUEST FOR A CONFERENCE AS ANY INDICATION OF MY OPINION OF THE CASE OR OF WHAT YOUR VERDICT SHOULD BE. IT WILL BE YOUR JOB AS JURORS TO FIND AND DETERMINE THE FACTS OF THIS MATTER. IF AT ANY TIME I SHOULD MAKE ANY COMMENT REGARDING THE FACTS, YOU ARE AT LIBERTY TO DISREGARD IT. MOREOVER, YOU SHOULD NOT TAKE ANY QUESTIONS THAT I MAY ASK WITNESSES AS AN INDICATION OF MY OPINION AS TO HOW YOU SHOULD DETERMINE THE ISSUES OF FACT. ANY OPINION WHICH YOU THINK I MAY HAVE AS TO THE FACTS WOULD NOT BE AT ALL IMPORTANT, YOU AND YOU ALONE, ARE THE SOLE JUDGES OF THE FACTS. 10 THE EVIDENCE FROM WHICH YOU ARE TO FIND THE FACTS CONSISTS OF THE FOLLOWINGS: 1. THE TESTIMONY OF THE WITNESS; 2. DOCUMENTS AND OTHER THINGS RECEIVED AS EXHIBITS; 3. ANY FACTS THAT ARE STIPULATED—THAT IS, FORMALLY AGREED TO BY THE PARTIES; AND 4. ANY FACTS THAT ARE JUDICALLY NOTICED—THAT IS, FACTS I SAY YOU MUST ACCEPT AS TRUE EVEN WITHOUT OTHER EVIDENCE. THE FOLLOWING THINGS ARE NOT EVIDENCE: 1. STATEMENTS, ARGUMENTS, AND QUESTIONS OF THE LAWYERS FOR THE PARTIES IN THIS CASE; 2. OBJECTIONS BY LAWYERS; 3. ANY TESTIMONY I TELL YOU TO DISREGARD; AND 4. ANYTHING YOU MAY SEE OR HEAR ABOUT THIS CASE OUTSIDE THE COURTROOM. YOU MUST MAKE YOUR DECISION BASED ONLY ON THE EVIDENCE THAT YOU SEE AND HEAR IN COURT. DO NOT LET RUMORS, SUSPICIONS, OR ANYTHING ELSE THAT YOU MAY 11 SEE OR HEAR OUTSIDE OF COURT INFLUENCE YOUR DECISION IN ANY WAY. YOU SHOULD USE YOUR COMMON SENSE IN WEIGHING THE EVIDENCE. CONSIDER IT IN LIGHT OF YOUR EVERYDAY EXPERIENCE WITH PEOPLE AND EVENTS, AND GIVE IT WHATEVER WEIGHT YOU BELIEVE IT DESERVES. IF YOUR EXPERIENCE TELLS YOU THAT CERTAIN EVIDENCE REASONABLY LEADS TO A CONCLUSION, YOU ARE FREE TO REACH THAT CONCLUSION. ALSO, CERTAIN TESTIMONY OR OTHER EVIDENCE MAY BE ORDERED STRUCK FROM THE RECORD AND YOU WILL BE INSTRUCTED TO DISREGARD THIS EVIDENCE. DO NOT CONSIDER ANY TESTIMONY OR OTHER EVDIENCE THAT GETS STRUCK OR EXCLUDED. DO NOT SPECULATE ABOUT WHAT A WITNESS MIGHT HAVE SAID OR WHAT AN EXHIBIT MIGHT HAVE SHOWN. IT IS ESPECIALLY IMPORTANT THAT YOU PERFORM YOUR DUTY OF DETERMINING THE FACTS DILIGENTLY AND CONSCIENTIOUSLY, FOR ORDINARILY THERE IS NO MEANS OF CORRECTING AN ERRONEOUS DETERMINATION OF THE FACTS BY A JURY. YOU MUST BASE YOUR DECISION ON THE 12 EVIDENCE IN THE CASE AND MY INSTRUCTIONS ABOUT THE LAW. YOU WILL HAVE TO DECIDE WHAT TESTIMONY YOU BELIEVE AND WHAT TESTIMONY YOU DON'T BELIEVE, THAT'S KNOWN AS CREDIBILITY OR BELIEVABILITY. YOU SHOULD DECIDE WHETHER YOU BELIEVE WHAT EACH WITNESS HAS TO SAY, AND HOW IMPORTANT THAT TESTIMONY IS. IN MAKING THAT DECISION I SUGGEST THAT YOU ASK YOURSELF A FEW QUESTIONS: DID THE WITNESS IMPRESS YOU AS HONEST? DID THE WITNESS HAVE ANY PARTICULAR REASON NOT TO TELL THE TRUTH? DID THE WITNESS HAVE A PERSONAL INTEREST IN THE OUTCOME OF THE CASE? DID THE WITNESS SEEM TO HAVE A GOOD MEMORY? DID THE WITNESS HAVE THE OPPORTUNITY AND ABILITY TO OBSERVE ACCURATELY THE THINGS THE WITNESS TESTIFIED ABOUT? DID THE WITNESS APPEAR TO UNDERSTAND THE QUESTIONS CLEARLY AND ANSWER THEM DIRECTLY? DID THE WITNESS'S TESTIMONY DIFFER FROM THE TESTIMONY OF OTHER WITNESSES? THESE ARE A FEW OF THE CONSIDERATIONS THAT WILL HELP YOU DETERMINE THE ACCURACY OF WHAT EACH WITNESS WILL SAY. 13 ALSO, YOU DON'T HAVE TO BELIEVE SOMETHING IS TRUE SIMPLY BECAUSE MORE WITNESSES SAID IT IS TRUE THAN SAID IT ISN'T TRUE. YOU MAY FIND THAT THE TESTIMONY OF A SMALLER NUMBER OF WITNESSES ABOUT AN EVENT IS MORE BELIEVABLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES. DURING THIS TRIAL, YOU WILL LIKELY HEAR THE TERM “DEPOSITION” USED BY THE LAWYERS. A DEPOSITION IS SIMPLY THE SWORN TESTIMONY OF A PERSON TAKEN BY THE ATTORNEYS DURING THE PENDENCY OF THE LAWSUIT. THE TRANSCRIPT (OR IN SOME CASES VIDEO RECORD) OF THAT TESTIMONY MAY BE PRESENTED IN THIS TRIAL IF THE WITNESS IS NOT AVAILABLE TO APPEAR OR IF THE WITNESS APPEARS AND TESTIFIES TO SOMETHING DIFFERENTLY THAN PREVIOUSLY TESTIFIED UNDER OATH. IN THAT EVENT THE DEPOSITION TRANSCRIPT MAY BE USED TO TRY TO ESTABLISH A PRIOR INCONSISTENT STATEMENT OR TO OTHERWISE AFFECT THE WITNESS’ CREDIBILITY, OR BELIEVABILITY, OF THE WITNESS. DURING THE TRIAL, YOU MAY BE TOLD THAT THE PARTIES AGREE, OR STIPULATE, TO CERTAIN FACTS. YOU 14 GENERALLY SHOULD ACCEPT THAT FACT AS TRUE EVEN THOUGH NOTHING MORE IS SAID ABOUT IT. LIKEWISE, YOU MAY BE TOLD THAT THE PARTIES AGREE OR STIPULATE TO WHAT A WITNESS'S TESTIMONY WOULD BE IF THE WITNESS WERE CALLED AT TRIAL. YOU WILL CONSIDER THAT STIPULATION TO BE THE TESTIMONY OF THAT WITNESS AS IF THE WITNESS WERE TESTIFYING. HOWEVER, YOU ARE NOT DUTY BOUND TO ACCEPT ANY STIPULATION AS YOU ARE THE SOLE DETERMINERS OF THE FACTS OF THIS MATTER. NO TRANSCRIPT OF WITNESS TESTIMONY WILL BE FURNISHED TO YOU AT THE TIME YOU BEGIN YOUR DELIBERATIONS. YOU ARE REQUIRED TO REMEMBER THE EVIDENCE AS YOU HEARD IT FROM THE WITNESSES. YOU CAN SEE, THEREFORE, THAT IT IS IMPORTANT THAT YOU NOT ONLY HEAR BUT ALSO LISTEN TO ALL OF THE EVIDENCE. IF ANY WITNESS DOES NOT SPEAK LOUDLY OR CLEARLY ENOUGH TO BE HEARD BY YOU OR YOU DO NOT HEAR THE QUESTION OF COUNSEL, PLEASE LET ME KNOW BY SIMPLY RAISING YOUR HAND AND WE WILL SEE TO IT THAT THE WITNESS OR ATTORNEY REPEATS THE MATERIAL THAT YOU DID NOT HEAR. 15 YOU MAY TAKE NOTES DURING THE TRIAL. OF COURSE IF YOU PREFER NOT TO TAKE NOTES, YOU DO NOT HAVE TO TAKE ANY. THE DECISION ABOUT WHETHER OR NOT TO TAKE NOTES IS A MATTER FOR EACH OF YOU INDIVIDUALLY TO DECIDE. IF YOU DO DECIDE TO TAKE NOTES, BE CAREFUL NOT TO GET SO INVOLVED IN NOTE TAKING THAT YOU BECOME DISTRACTED FROM THE ONGOING PROCEEDINGS. ADDITIONALLY, I CAUTION YOU THAT THERE MAY BE A TENDENCY TO ATTACH UNDUE IMPORTANCE TO MATTERS THAT ONE HAS WRITTEN DOWN. TESTIMONY THAT IS CONSIDERED UNIMPORTANT AT THE TIME PRESENTED, HOWEVER, AND THUS NOT WRITTEN DOWN, MAY TAKE ON GREATER IMPORTANCE LATER IN THE TRIAL IN LIGHT OF ALL THE EVIDENCE PRESENTED. THEREFORE, YOU ARE INSTRUCTED THAT YOUR NOTES ARE ONLY A TOOL TO AID YOUR OWN INDIVIDUAL MEMORY AND YOU SHOULD NOT COMPARE YOUR NOTES WITH OTHER JURORS' NOTES IN DETERMINING THE CONTENT OF ANY TESTIMONY OR IN EVALUATING THE IMPORTANCE OF ANY EVIDENCE. YOUR NOTES ARE NOT EVIDENCE, AND WILL BY NO MEANS BE A COMPLETE OUTLINE OF THE PROCEEDING OR A 16 COMPREHENSIVE LIST OF THE HIGHLIGHTS OF THE TRIAL. ABOVE ALL, YOUR MEMORY SHOULD BE YOUR GREATEST ASSET WHEN IT COMES TIME TO DELIBERATE AND RENDER A DECISION IN THIS CASE. YOU MAY NOT TAKE YOUR NOTES BEYOND THE COURTROOM AND JURY ROOM VICINITY. BEFORE YOU LEAVE THIS AREA FOR ANY REASON, YOUR NOTES MUST BE LEFT IN THE JURY ROOM. WHEN YOU LEAVE AT NIGHT, YOUR NOTES WILL BE SECURED AND NOT READ BY ANYONE. AT THE END OF THE TRIAL, YOUR NOTES WILL BE COLLECTED AND DESTROYED. NO ONE, NOT THE LAWYERS, MY STAFF, NEWSPAPER REPORTERS, NOR I WILL BE PERMITTED TO READ YOUR NOTES. THEY ARE AND WILL REMAIN PERMANENTLY PRIVATE. NEXT, I WILL EXPLAIN THE BURDENS OF PROOF PLACED ON THE PARTIES IN THIS CASE. THE PLAINTIFFS HAVE THE BURDEN OF ESTABLISHING, OR PROVING, THEIR CLAIMS PRESENTED IN THE CASE BY A PREPONDERANCE OF THE CREDIBLE EVIDENCE. PREPONDERANCE OF THE EVIDENCE MEANS EVIDENCE WHICH, WHEN WEIGHED AGAINST THAT WHICH IS OPPOSED TO IT, HAS MORE CONVINCING FORCE, SO THAT THE GREATER PROBABILITY OF TRUTH LIES WITHIN IT. 17 IF YOU WILL CONSIDER THE BURDEN OF PROOF IN THE LIGHT OF THE SCALES OF JUSTICE THAT YOU COMMONLY SEE DEPICTED, RIGHT NOW THE SCALES ARE EVENLY BALANCED BECAUSE NO EVIDENCE AT ALL HAS BEEN INTRODUCED INTO THE CASE. IF, AT THE CONCLUSION OF ALL THE EVIDENCE IN THE CASE, YOU FIND THAT THE SCALES HAVE TIPPED IN FAVOR OF THE PLAINTIFFS EVEN THOUGH SLIGHTLY, THEN THE PLAINTIFFS WILL HAVE MET THEIR BURDEN OF PROOF AND SHOULD PREVAIL. IF, HOWEVER, AT THE CONCLUSION OF ALL THE EVIDENCE, YOU FIND THAT THE SCALES HAVE NOT TILTED IN FAVOR OF THE PLAINTIFFS THEN THE PLAINTIFFS HAVE FAILED TO MEET THEIR BURDEN OF PROOF. IF, AT THE CONCLUSION OF ALL THE EVIDENCE, YOU FIND THAT THE SCALES ARE EVENLY BALANCED, AS THEY ARE AT THE PRESENT TIME, THEN, AGAIN, THE PLAINTIFFS WILL HAVE FAILED TO MEET THEIR BURDEN OF PROOF. SIMILARLY, THE DEFENDANT HAS THE BURDEN OF ESTABLISHING OR PROVING CERTAIN AFFIRMATIVE DEFENSES BY THE FAIR WEIGHT OR PREPONDERANCE OF THE EVIDENCE. YOU WILL DETERMINE WHETHER THE DEFENDANT HAS CARRIED THIS BURDEN IN THE SAME 18 MANNER AS I HAVE JUST INSTRUCTED YOU. AS PREVIOUSLY STATED, I WILL GIVE YOU DETAILED INSTRUCTIONS AS TO THE LAW WHICH YOU ARE TO APPLY TO THIS CASE AFTER ALL OF THE EVIDENCE HAS BEEN PRESENTED. AT THIS TIME, HOWEVER, I WILL GIVE YOU SEVERAL BRIEF INSTRUCTIONS CONCERNING THE ISSUES INVOLVED IN THIS CASE, WHICH SHOULD ASSIST YOU IN FOLLOWING, AND MORE FULLY UNDERSTANDING, THE EVIDENCE THAT IS PRESENTED. AS YOU PREVIOUSLY HAVE HEARD, THIS IS A CASE IN WHICH PLAINTIFFS ALLEGE THAT THE STOCKPICKER MANUFACTURED BY CROWN WAS DEFECTIVE AND THAT BECAUSE IT WAS DEFECTIVE, PLAINTIFFS SUFFERED INJURIES. THE DEFENDANT IN SUBSTANCE CONTENDS THAT ITS PRODUCT WAS NOT DEFECTIVE, AND THAT IN ANY EVENT, CERTAIN ACTIONS TAKEN OR NOT TAKEN BY MR. SANSOM WERE THE CAUSE OF THE INJURIES CLAIMED BY PLAINTIFFS. THIS CASE SHOULD BE CONSIDERED AND DECIDED BY YOU AS AN ACTION BETWEEN PARTIES OF EQUAL STANDING IN THE COMMUNITY. A CORPORATION IS ENTITLED TO THE SAME FAIR TRIAL AT YOUR HANDS AS A PRIVATE INDIVIDUAL, 19 AND VICE VERSA. ALL PERSONS, INCLUDING CORPORATIONS AND INDIVIDUALS, STAND EQUAL BEFORE THE LAW AND ARE TO BE DEALT WITH AS EQUALS IN A COURT OF JUSTICE. FINALLY, IF YOU FIND THAT THE PLAINTIFFS HAVE PROVED THEIR CLAIM, THEN YOU WILL HAVE TO DECIDE ISSUES REGARDING MONETARY DAMAGES TO DECIDE. IF, AFTER CONSIDERATION OF THE EVIDENCE, YOU FIND THAT THE CROWN STOCKPICKER IN QUESTION WAS DEFECTIVE, AND THAT SUCH DEFECTIVE PRODUCT WAS THE CAUSE OF INJURIES TO PLAINTIFFS, THEN YOU MUST DETERMINE WHAT AMOUNT OF MONETARY DAMAGES TO BE AWARDED TO COMPENSATE THE PLAINTIFFS. THE FACT THAT I WILL INSTRUCT YOU AS TO THE PROPER MEASURE OF DAMAGES SHOULD NOT BE CONSIDERED AS A SUGGESTION THAT YOU SHOULD FIND IN FAVOR OF THE PLAINTIFFS OR AWARD DAMAGES. FURTHER, IF YOU FIND IN FAVOR OF CROWN, YOU WILL NOT NEED TO CONSIDER MONETARY DAMAGES, AS NONE WILL BE DUE. INSTRUCTIONS AS TO DAMAGES ARE GIVEN FOR YOUR GUIDANCE IN THE EVENT THAT YOU FIND IN FAVOR OF PLAINTIFFS FROM A PREPONDERANCE OF THE EVIDENCE IN ACCORDANCE WITH THE OTHER INSTRUCTIONS 20 TO BE GIVEN TO YOU. I CAUTION YOU TO USE THESE PRELIMINARY INSTRUCTIONS AND COMMENTS ONLY FOR THE PURPOSE OF UNDERSTANDING THE EVIDENCE AND NOT TO MAKE A DETERMINATION OF THE OUTCOME OF THIS CASE BEFORE ALL OF THE EVIDENCE IS PRESENTED TO YOU. THE INSTRUCTIONS GIVEN TO YOU AT THE CONCLUSION OF ALL OF THE EVIDENCE WILL FURTHER DETAIL THE LAW AND CLARIFY HOW YOU SHOULD APPLY THE LAW TO THE FACTS OF THIS CASE YOU SHOULD NOT SEEK INFORMATION REGARDING ANY ASPECTS OF THIS TRIAL FROM ANY SOURCE OUTSIDE OF THE COURTROOM. IT WOULD BE IMPROPER FOR YOU TO DISCUSS ANY OF THE ISSUES OF THIS CASE WITH ANY PERSON, INCLUDING MEMBERS OF YOUR FAMILY, UNTIL AFTER THE TRIAL IS CONCLUDED. YOU, AS JURORS, MUST DECIDE THIS CASE BASED SOLELY ON THE EVIDENCE PRESENTED HERE WITHIN THE FOUR WALLS OF THIS COURTROOM. THIS MEANS THAT DURING TRIAL YOU MUST NOT CONDUCT ANY INDEPENDENT RESEARCH ABOUT THIS CASE. IN OTHER WORDS, YOU 21 SHOULD NOT CONSULT DICTIONARIES OR REFERENCE MATERIALS, SEARCH THE INTERNET, WEBSITES, BLOGS, OR USE ANY OTHER ELECTRONIC TOOLS TO OBTAIN INFORMATION ABOUT THIS CASE OR TO HELP YOU DECIDE THE CASE. PLEASE DO NOT TRY TO FIND OUT INFORMATION FROM ANY SOURCE OUTSIDE THIS COURTROOM. NO GOOGLING! UNTIL YOU RETIRE TO DELIBERATE, YOU MAY NOT DISCUSS THIS CASE WITH ANYONE, EVEN YOUR FELLOW JURORS. AFTER YOU RETIRE TO DELIBERATE, YOU MAY BEGIN DISCUSSING THE CASE WITH YOUR FELLOW JURORS, BUT YOU CANNOT DISCUSS THE CASE WITH ANYONE ELSE UNTIL YOU HAVE RETURNED A VERDICT, THE CASE IS AT AN END AND I HAVE FINALLY EXCUSED YOU. I KNOW THAT MANY OF YOU USE CELL PHONES, BLACKBERRIES, THE INTERNET AND OTHER TOOLS OF TECHNOLOGY. YOU MUST ALSO NOT TALK TO ANYONE AT ANY TIME ABOUT THIS CASE OR USE THESE TOOLS TO COMMUNICATE ELECTRONICALLY WITH ANYONE ABOUT THE CASE. THIS INCLUDES YOUR FAMILY AND FRIENDS. YOU MAY NOT COMMUNICATE WITH ANYONE ABOUT THE CASE ON 22 YOUR CELL PHONE, THROUGH EMAIL, BLACKBERRY, iPHONE , TEXT MESSAGING, OR ON TWITTER, THROUGH ANY BLOG OR WEBSITE, INCLUDING FACEBOOK, GOOGLE+, MY SPACE, LINKED IN, OR YOU-TUBE. YOU MAY NOT USE ANY SIMILAR TECHNOLOGY OF SOCIAL MEDIA, EVEN IF I HAVE NOT SPECIFICALLY MENTIONED IT HERE. I EXPECT YOU WILL INFORM ME AS SOON AS YOU BECOME AWARE OF YOUR (OR ANOTHER JUROR'S) VIOLATION OF THESE INSTRUCTIONS, EVEN IF IT IS INADVERTENT. THE ATTORNEYS AND THEIR CLIENTS ARE NOT PERMITTED TO DISCUSS THE CASE WITH YOU OTHER THAN IN THIS COURTROOM IN THE COURSE OF THE TRIAL, THEY ARE NOT EVEN PERMITTED TO BE SOCIABLE WITH YOU OUTSIDE OF THE COURTROOM. SO IF YOU SEE THEM IN THE CORRIDORS OR ELEVATORS AND THEY DON'T SPEAK TO YOU, DON'T THINK THEY ARE TRYING TO SLIGHT OR SNUB YOU. THEY ARE SIMPLY OBSERVING THE RESTRICTIONS WHICH THE COURT PLACES ON THEM NOT TO TALK TO YOU UNLESS IT IS IN THIS COURTROOM. FROM THIS POINT ON, DO NOT DISCUSS THIS CASE WITH ANYONE. ALSO, PLEASE DO NOT DISCUSS THIS CASE AMONG 23 YOURSELVES UNTIL SUCH TIME AS YOU HAVE HEARD ALL OF THE EVIDENCE, THE CLOSING ARGUMENTS OF COUNSEL AND THE FINAL CHARGE ON THE LAW AS I WILL GIVE IT TO YOU AT THE CONCLUSION OF THE CASE. I PREVIOUSLY INTRODUCED MY COURTROOM STAFF TO YOU. PLEASE DO NOT ASK THE COURT STAFF ANY QUESTIONS ABOUT THE CASE DURING THE TRIAL, EXCEPT YOU MAY ASK MR. BABIK (OR ANOTHER COURT STAFF MEMBER) ABOUT PERSONAL MATTERS RELATING DIRECTLY TO YOUR SERVICE AS A JUROR, SUCH AS TRANSPORTATION ISSUES OR THE NEED FOR SUPPLIES IN THE JURY ROOM AND THE LIKE. MR. BABIK WILL PROVIDE YOU WITH CONTACT INFORMATION TO USE IF YOU HAVE AN EMERGENCY, AND FOR YOU TO USE TO OBTAIN INFORMATION IN THE EVENT OF BAD WEATHER. WE WILL ALSO HAVE YOUR CONTACT INFORMATION IN THE EVENT WE NEED TO CONTACT THE JURY AFTER HOURS DUE TO A CHANGE IN SCHEDULE OR OTHER UNFORESEEN CIRCUMSTANCES. FINALLY, THERE IS ONE QUESTION THAT WOULD BE ON MY MIND IF I WERE A JUROR; THAT IS, WHAT IF I HAVE A NEED FOR AN IMMEDIATE COMFORT BREAK? NO PROBLEM – PLEASE 24 SIMPLY MAKE THIS “BREAK” SIGN (DEMONSTRATE), AND I WILL CALL A BREAK AS SOON AS IS POSSIBLE. IF IT IS AN EMERGENCY, PLEASE JUST RAISE YOUR HAND. IF THIS HAPPENS, PLEASE DO NOT BE SELF-CONSCIOUS, AS WE HAVE ALL BEEN THERE. I WILL NOW READ YOU SEVERAL STIPULATIONS THAT THE PARTIES HAVE AGREED THAT YOU MAY CONCLUDE AS BEING ESTABLISHED WITHOUT ANY FURTHER EVIDENCE. JOINT STIPULATION OF FACTS 1. THE PLAINTIFF IN THIS CASE, CHRISTOPHER SANSOM, WAS SERIOUSLY INJURED IN AN ACCIDENT WHICH OCCURRED ON NOVEMBER 28, 2007 AT THE FACILITIES OF GREAT LAKES COLD STORAGE LOCATED IN CRANBERRY TOWNSHIP, PENNSYLVANIA. 2. AT THE TIME OF THE ACCIDENT, MR. SANSOM WAS USING A PIECE OF EQUIPMENT COMMONLY REFERRED TO AS A STOCKPICKER (CROWN LIFT TRUCK MODEL 36-SP-48TT-360) WHICH HAD BEEN MANUFACTURED BY DEFENDANT, CROWN EQUIPMENT CORPORATION, AT ITS FACILITIES IN NEW BREMEN, OHIO ON MAY 5, 1997. 25 3. THE STOCKPICKER INVOLVED IN THIS CASE HAS AN OPERATOR PLATFORM ON WHICH THE OPERATOR STANDS WHICH IS TWENTY-SEVEN (27) INCHES DEEP AND FORTY- EIGHT (48) INCHES WIDE WHICH CAN BE ELEVATED TO HEIGHTS AS HIGH AS THIRTY (30) FEET ABOVE GROUND. 4. ON BOTH SIDES OF THE OPERATOR AS HE STANDS ON THE OPERATOR PLATFORM FACING A SET OF CONTROLS ARE TWO GATES WHICH EXTEND TO A HEIGHT OF THIRTY-SIX (36) INCHES ABOVE THE OPERATOR PLATFORM. 5. THE PREDOMINANT USE OF THE STOCKPICKER IN WAREHOUSE OR STORAGE FACILITIES IS TO ALLOW GOODS TO BE REMOVED FROM A PALLET TO BE PLACED IN STORAGE RACKS OR TO ALLOW GOODS TO BE "PICKED" FROM STOCK IN ORDER TO FILL AN ORDER. 6. IN 1997, THE PREDECESSOR COMPANY TO GREAT LAKES COLD STORAGE LEASED FROM CROWN CREDIT CERTAIN TRUCKS, INCLUDING TWO CROWN STOCKPICKERS, ONE OF WHICH WAS INVOLVED IN MR. SANSOM'S ACCIDENT ON NOVEMBER 28, 2007. 7. AT THE TIME THE STOCKPICKER WAS MANUFACTURED AND SOLD BY CROWN IN 1997, CROWN, AS A 26 MEANS OF FALL PROTECTION, SOLD THE STOCKPICKER WITH A MEDIUM SIZE SAFETY BELT (ADJUSTABLE BETWEEN THIRTY- SIX (36) INCHES AND FORTY-FOUR (44) INCHES) AND AN EIGHT (8) FOOT NON-RETRACTABLE LANYARD WHICH COULD BE ATTACHED TO THE STOCKPICKER FRAMEWORK. 8. THE ACCIDENT IN THIS OCCURRED WHEN, AFTER MR. SANSOM HAD ELEVATED THE STOCKPICKER PLATFORM SOME FIFTEEN (15) FEET ABOVE GROUND, THE STOCKPICKER WAS STRUCK BY ANOTHER PIECE OF EQUIPMENT KNOWN AS A REACH TRUCK BEING OPERATED BY A CO-WORKER. 9. THE FORCE OF THE COLLISION CAUSED MR. SANSOM TO FALL TO THE GROUND. 10. AT THE TIME OF THE ACCIDENT, MR. SANSOM WAS NOT WEARING A SAFETY BELT OR OTHERWISE CONNECTED TO THE STOCKPICKER FOR REASONS WHICH ARE IN DISPUTE IN THIS LAWSUIT. 11. CROWN HAD BEEN MANUFACTURING THE SP SERIES OF STOCKPICKERS OF THE TYPE INVOLVED IN THIS CASE FOR SOME THIRTY (30) YEARS BEFORE IT MANUFACTURED THE STOCKPICKER IN MAY 1997 THAT MR. SANSOM WAS USING ON THE DATE OF THE ACCIDENT. 27 12. THE APPLICABLE STANDARD OF THE AMERICAN NATIONAL STANDARDS INSTITUTE (KNOWN AS “ANSI”) FOR STOCKPICKERS SOLD IN THE UNITED STATES GIVES THE LIFT TRUCK MANUFACTURER THE CHOICE OF WHETHER TO USE BELTS, GATES OR OTHER DEVICES AS A MEANS OF FALL PROTECTION. THE STANDARD DOES NOT PREVENT THE USE OF MORE THAN ONE SUCH SYSTEM. 13. IN THE UNITED STATES, CROWN HAS USED A STANDARD ACCIDENT REPORT FOR MORE THAN TWENTY (20) YEARS TO OBTAIN INFORMATION ABOUT ACCIDENTS INVOLVING CROWN PRODUCTS INCLUDING STOCKPICKERS. 14. IN THE UNITED STATES, THE CROWN ACCIDENT REPORT FORMS ARE SENT TO CROWN'S PRODUCT SAFETY COORDINATOR AT ITS NEW BREMEN, OHIO FACILITY AND ARE THEN CIRCULATED TO OTHER PEOPLE WITHIN THE CROWN ORGANIZATION AND THOSE RESPONSIBLE FOR THE DESIGN OF LIFT TRUCKS WHICH INCLUDE STOCKPICKERS. I HOPE THAT FOR ALL OF YOU THIS CASE IS INTERESTING AND NOTEWORTHY. NOW WE WILL BEGIN BY AFFORDING COUNSEL FOR THE PLAINTIFFS AN OPPORTUNITY TO MAKE AN 28 OPENING STATEMENT, AND I ASK THAT YOU GIVE HIM YOUR CLOSEST ATTENTION. 29

=== Sample Civil Voir Dire ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA COMPANY WRENCH, LTD, Plaintiff, v. HIGHWAY EQUIPMENT COMPANY, Defendant. 2:10-cv-01763 Judge Mark R. Hornak Counsel for Plaintiff: Charles Johns / Brian Pulito Counsel for Defendant Eric Reif / Mark Caloyer / Bradley Matta COURT’S PROPOSED JURY SELECTION PROCEDURE GOOD MORNING LADIES AND GENTLEMEN, I WANT TO WELCOME YOU TO THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA. I AM JUDGE MARK HORNAK AND I WILL BE PRESIDING OVER JURY SELECTION FOR A CIVIL TRIAL IN WHICH YOU HAVE BEEN SUMMONED TO PARTICIPATE. THE CASE IS ENTITLED: COMPANY WRENCH, LTD, PLAINTIFF v. HIGHWAY EQUIPMENT COMPANY, DEFENDANT. 1 LADIES AND GENTLEMEN, BUT FOR SERVICE IN OUR U.S. MILITARY, SERVING AS A JUROR IN OUR JUSTICE SYSTEM IS THE HIGHEST FORM OF CIVIC DUTY AND RESPONSIBILITY WHICH ONE IS CALLED UPON TO PERFORM AS A CITIZEN IN OUR DEMOCRACY. CITIZENS SITTING IN JUDGMENT OF THE ACTIONS OF FELLOW CITIZENS IS A BASIC TENET OF OUR JUSTICE SYSTEM, WHICH WE BELIEVE TO BE THE FAIREST SYSTEM IN THE WORLD AND WHICH COULD NOT FUNCTION WITHOUT YOU. WE KNOW THAT IT IS A PERSONAL AND PROFESSIONAL SACRIFICE FOR YOU TO BE HERE, BUT IT IS TRULY VERY IMPORTANT AND I WILL DO EVERYTHING IN MY POWER TO MAKE THIS A MEANINGFUL EXPERIENCE FOR YOU WITH AS LITTLE INCONVENIENCE AS POSSIBLE. BELIEVE ME, THIS TRIAL IS VERY IMPORTANT TO THE PARTIES INVOLVED, THE ATTORNEYS AND THIS COURT AND WE ARE MOST APPRECIATIVE OF YOUR PARTICIPATION AS CITIZEN JURORS. IT IS THE JURY'S FUNCTION TO DECIDE THE FACTS OF THE MATTER WITHOUT BIAS OR PREJUDICE TO ANY PARTY IN THE CASE. THE LAW DOES NOT PERMIT JURORS TO BE GOVERNED BY SYMPATHY, PREJUDICE, BIAS OR PUBLIC OPINION. YOU ARE TO BE FAIR MINDED. 2 THEREFORE, I MUST EXCLUDE FROM THE JURY ANYONE WHO HAS SUCH STRONG FEELINGS, OR PERSONAL KNOWLEDGE, ABOUT THE PEOPLE OR ISSUES INVOLVED IN THE CASE THAT HE OR SHE IS UNABLE TO EVALUATE THE EVIDENCE IMPARTIALLY. THE LAW ALSO PROVIDES FOR THE ATTORNEYS FOR THE PARTIES TO PARTICIPATE IN THE JURY SELECTION PROCESS THROUGH THE EXERCISE OF PEREMPTORY CHALLENGES (EXCUSALS), WHICH MEANS THAT THEY WILL BE PERMITTED TO EXCLUDE A TOTAL OF SIX (6) (3 APIECE) OF YOU PROSPECTIVE JURORS FROM THE CASE WITHOUT STATING A REASON FOR DOING SO. IN FACT, THE LAWYERS MUST EXCLUDE A CERTAIN NUMBER OF YOU JUST TO GET TO THE REQUISITE NUMBER OF JURORS FOR THIS TRIAL. THE EXERCISE OF THE PEREMPTORY CHALLENGES DOES NOT CONSTITUTE ANY REFLECTION WHATSOEVER ON THE PROSPECTIVE JURORS WHO ARE EXCUSED FROM DELIBERATING ON THIS CASE. IT SHOULD NOT BE INTERPRETED AS A DECISION THAT THOSE PERSONS WHO ARE EXCUSED ARE BIASED OR PREJUDICED. IT SIMPLY MEANS THAT THE LAWYERS, BASED ON HIS OR HER TRIAL EXPERIENCE, KNOWLEDGE OF THE CASE, AND THE INFORMATION LEARNED THROUGH THIS PROCESS, HAVE 3 DECIDED THAT SOMEONE ELSE SHOULD SIT AS A JUROR TO HEAR AND DECIDE THIS PARTICULAR CASE. THE JURY IN THIS CASE WILL CONSIST OF EIGHT MEMBERS. ALL JURORS SEATED WILL PARTICIPATE IN THE TRIAL AND DELIBERATIONS TO A VERDICT. TO ASSIST BOTH THE COURT AND THE LAWYERS IN THE JURY SELECTION PROCESS, I WILL CONDUCT WHAT IS KNOWN AS VOIR DIRE. THAT MEANS I WILL ASK YOU CERTAIN QUESTIONS ABOUT YOUR FEELINGS AND EXPERIENCES WHICH MIGHT INFLUENCE YOUR THINKING ABOUT THIS CASE. THESE QUESTIONS ARE DESIGNED TO SUPPLY INFORMATION TO BOTH SIDES WHICH WILL ENABLE THE LAWYERS TO EXERCISE THEIR CHALLENGES MORE INTELLIGENTLY AND EFFECTIVELY. CERTAIN QUESTIONS WILL BE ASKED OF YOU HERE IN OPEN COURT AND OTHER QUESTIONS WILL BE ASKED INDIVIDUALLY IN PRIVATE OUT OF THE HEARING OF ONE ANOTHER. NOW THAT I HAVE EXPLAINED THE PURPOSE OF VOIR DIRE TO YOU, I'LL TELL YOU A LITTLE ABOUT THE CIVIL CASE ON WHICH WE'RE ABOUT TO HAVE A TRIAL. 4 I WILL NOT AT THIS TIME GIVE ANY DETAILED EXPLANATION OF THE LAWS APPLICABLE TO THIS CASE, BUT IN ORDER THAT YOU HAVE SOME FAMILIARITY WITH THE CASE WHICH YOU MAY BE SELECTED TO HEAR, I WILL GIVE YOU A CAPSULE SUMMARY OF THE BASIC ISSUES IN THIS CASE. [INSERT DETAILS OF ACTION] THESE ARE THE BASIC FACTS AND CONTENTIONS OF THE PARTIES IN THIS CASE. REPRESENTATIVES OF THE PLAINTIFF, COMPANY WRENCH ARE PRESENT IN THE COURTROOM THIS MORNING SEATED BEHIND THE TABLE CLOSEST TO THE JURY BOX WITH THEIR ATTORNEYS, CHARLES JOHNS AND BRIAN PULITO. THE ATTORNEYS FOR THE DEFENDANT, HIGHWAY EQUIPMENT COMPANY ARE AT COUNSEL TABLE TO MY RIGHT, YOUR LEFT. THEY ARE ERIC REIF, MARK CALOYER AND BRADLEY MATTA. SEATED WITH THEM IS A REPRESENTATIVE OF HIGHWAY EQUIPMENT COMPANY. 5 MY COURTROOM DEPUTY IS MR. BRIAN BABIK. MY JUDICIAL LAW CLERKS ARE MR. JOSEPH PARSONS AND MS. GINEVRA VENTRE. MY JUDICIAL ASSISTANT IS MS. JUDY DRESSLER. THEY ARE OFFICERS OF THE COURT AND WILL HELP WITH THE JURY SELECTION AND TRIAL PROCESS. OUR COURT REPORTER IS MS. SANDY WENGER, WHO WILL STENOGRAPHICALLY TRANSCRIBE EVERYTHING THAT IS SAID DURING THIS PROCEEDING AND TRIAL. LADIES AND GENTLEMEN, WILL YOU NOW PLEASE STAND AND RAISE YOUR RIGHT HAND TO BE ADMINISTERED AN OATH. MR. BABIK, WILL YOU KINDLY SWEAR THE PANEL OF JURORS. WE WILL START THE ACTUAL JURY SELECTION PROCESS BY ASKING EACH OF YOU TO STAND ONE AT A TIME AND ANSWER ALOUD THE QUESTIONS ON THE DATA INFORMATION SHEET DISTRIBUTED TO YOU THIS MORNING. PLEASE TAKE YOUR TIME AND SPEAK UP SO THAT ALL OF YOUR ANSWERS WILL BE HEARD AND UNDERSTOOD. IF YOU DO NOT UNDERSTAND ANY OF THE QUESTIONS, PLEASE FEEL FREE TO ASK ME FOR AN EXPLANATION. LET'S START WITH THE PERSON IN THE FIRST ROW ON THE AISLE, AND PROCEED FROM THERE. 6 CIVIL JURY PERSONAL DATA INFORMATION A. I AM JUROR NUMBER ____________. B. I AM (AGE) ___________ YEARS OLD. C. I LIVE IN (CITY OF RESIDENCE & COUNTY) _____________. D. I HAVE LIVED THERE APPROXIMATELY ________ YEARS. E. I OWN / RENT MY HOME. F. I AM / AM NOT LICENSED TO DRIVE A MOTOR VEHICLE. G. MY EDUCATIONAL BACKGROUND IS __________________. (E.G. HIGH SCHOOL? COLLEGE? OTHER?) IF COLLEGE, MY MAJOR AREA OF STUDY WAS _________. H. MY EMPLOYER IS ___________________________________. MY JOB TITLE IS ________________________. (IF RETIRED, WHO WAS YOUR LAST EMPLOYER AND WHAT WAS YOUR JOB TITLE?) I. I AM / AM NOT MARRIED. IF MARRIED, (a) MY SPOUSE’S EMPLOYER IS ______________________. (b) MY SPOUSE’S JOB TITLE IS ______________________. (IF RETIRED, WHO WAS HIS / HER LAST EMPLOYER AND WHAT WAS HIS / HER JOB TITLE?) J. DO YOU HAVE CHILDREN? IF YES, PLEASE TELL US THEIR 7 AGES AND EMPLOYMENT, IF ANY. K. I DO / DO NOT HAVE AN ATTORNEY. IF SO, MY ATTORNEY’S NAME IS ___________________________ AND I HAVE RETAINED HIM / HER BECAUSE ________________. QUESTIONS DIRECTED TO THE PANEL EN BANC TO THE ENTIRE PANEL: NOW I WILL POSE A NUMBER OF QUESTIONS TO YOU AS A GROUP. IF YOUR ANSWER TO THE QUESTION IS "NO," PLEASE REMAIN SEATED AND SAY NOTHING. IF YOUR ANSWER TO ANY OF THE FOLLOWING QUESTIONS IS "YES", PLEASE STAND AND STATE YOUR JUROR NUMBER ONLY TO EACH QUESTION TO WHICH YOUR ANSWER IS “YES.” AT THIS TIME, DO NOT PROVIDE ANY FURTHER INFORMATION ABOUT ANY "YES" ANSWER. *************************** 1. NOW THAT YOU HAVE HEARD A BRIEF SUMMARY OF THE FACTS AND CONTENTIONS OF THE PARTIES IN THIS MATTER, DO ANY OF YOU KNOW ANYTHING ABOUT THIS CASE OR HAVE YOU READ, SEEN OR HEARD ANYTHING ABOUT IT? IF SO, PLEASE STAND AND STATE YOUR JUROR NUMBER. 8 FOLLOW UP IN CHAMBERS  WHAT DO YOU KNOW ABOUT THIS CASE?   HOW DO YOU KNOW IT? HAS WHAT YOU HAVE READ, SEEN OR HEARD CAUSED YOU TO FORM AN OPINION ABOUT THE CASE?  WHAT IS YOUR OPINION?  COULD YOU SET THAT OPINION ASIDE?  WOULD WHAT YOU HAVE READ, SEEN OR HEARD AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? *************************** 2. I WILL ASK THE REPRESENTATIVES OF THE PLAINTIFF, ______________________________________, TO STAND. DO ANY OF YOU KNOW OR KNOW ANYTHING ABOUT COMPANY WRENCH OR EITHER OF THEM? HAVE YOU, OR ANY MEMBER OF YOUR IMMEDIATE FAMILY, BEEN EMPLOYED BY COMPANY WRENCH OR DONE BUSINESS WITH THEM? "IMMEDIATE FAMILY" IS DEFINED AS HUSBAND, WIFE, CHILDREN, BROTHERS, SISTERS, MOTHER, FATHER, AND GRANDPARENT. 9 FOLLOW-UP IN CHAMBERS   HOW DO YOU KNOW PLAINTIFF IS HE / SHE A FRIEND / RELATIVE / BUSINESS ASSOCIATE? WOULD YOUR KNOWLEDGE OF COMPANY WRENCH OR OF ___________________________ AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? *************************** 3. I WILL ALSO ASK THE PLAINTIFF’S ATTORNEYS, CHARLES JOHNS AND BRIAN PULITO, OF THE LAW FIRM OF STEPTOE AND JOHNSON PLLC TO STAND.  DO ANY OF YOU KNOW EITHER ATTORNEYS JOHNS OR PULITO?  HAVE THEY OR THEIR FIRM EVER REPRESENTED YOU OR A MEMBER OF YOUR IMMEDIATE FAMILY, IF YOU KNOW? FOLLOW-UP IN CHAMBERS    HOW DO YOU KNOW HIM OR HIS FIRM? DETAILS OF REPRESENTATION. CAN YOU BE FAIR AND IMPARTIAL? 10 *************************** 4. THE DEFENDANT IS HIGHWAY EQUIPMENT COMPANY.  ARE YOU, OR ANY MEMBER OF YOUR IMMEDIATE FAMILY, CURRENT OR FORMER EMPLOYEES OF HIGHWAY EQUIPMENT COMPANY?  DO YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY HAVE A BUSINESS RELATIONSHIP WITH HIGHWAY EQUIPMENT COMPANY? FOLLOW-UP IN CHAMBERS  WHO IS EMPLOYED / WHAT RELATIONSHIP / WHAT JOB CAPACITY / HOW LONG?  WOULD ANY SUCH RELATIONSHIP AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IF SELECTED IN THIS CASE? *************************** 5. I WILL ASK THE ATTORNEYS FOR HIGHWAY EQUIPMENT COMPANY, ERIC REIF, MARK CALOYER AND BRADLEY MATTA OF THE LAW FIRM OF PIETRAGALLO, GORDON ALFANO BOSICK & RASPANTI TO STAND:  DO ANY OF YOU KNOW ANY OF THEM OR THEIR FIRM? 11  HAVE YOU OR ANY MEMBERS OF YOUR IMMEDIATE FAMILY EVER BEEN REPRESENTED BY ANY OF THEM OR THEIR LAW FIRM? FOLLOW-UP IN CHAMBERS    HOW DO YOU KNOW THEM? DETAILS OF REPRESENTATION? CAN YOU BE FAIR AND IMPARTIAL? *************************** 6. YOU SHOULD KNOW THAT THIS CASE IS ESTIMATED TO LAST APPROXIMATELY FIVE (5) TO SEVEN (7) TRIAL DAYS, AND WILL BEGIN NEXT MONDAY, OCTOBER 7, 2013 AT 9:00 AM. HOWEVER, THIS IS JUST OUR BEST ESTIMATE AND IT MAY BE SHORTER OR LONGER. ALSO OUR JURY DELIBERATION ROOM IS UP TWO FLIGHTS OF STAIRS FROM THIS COURTROOM WHICH MUST BE TRAVERSED SEVERAL TIMES EACH DAY. NOW KNOWING THE PARTIES, THE BASIC FACTUAL ISSUES OF THE CASE, THE POTENTIAL DURATION OF THE TRIAL AND THE INVOLVEMENT OF STAIRS, IS THERE ANY LEGITIMATE, JUSTIFIABLE HARDSHIP OR REASON, PERSONAL, PROFESSIONAL, EMPLOYMENT, MEDICAL OR OTHERWISE, WHY 12 YOU COULD NOT SERVE AS A JUROR FOR THE DURATION OF THIS RELATIVELY SHORT CIVIL TRIAL? FOLLOW-UP IN CHAMBERS  WHAT REASON?  HOW DOES THAT PREVENT YOU FROM FULFILLING YOUR JURY SERVICE? *************************** 7. THE FOLLOWING WITNESSES MAY TESTIFY IN THIS TRIAL. IF YOU KNOW ANY OF THESE PERSONS, AS I STATE THEIR NAMES PLEASE INTERRUPT ME, STAND AND STATE YOUR JUROR NUMBER ONLY: BRAD HUTCHINSON GARY GLECKER SCOTT A. CARPENTER TOM REYNOLDS RONALD J. SLEE CAM GABBARD PENNY HUTCHINSON KEVIN ALLEN BRIAN MCKINNEY DALE LESLIE KIRK GILLETTE TODD JOHNSON 13 CHUCK BETTERS, SR. ED TURNER RICHARD STEINBRENNER ROBERT GEORGE SCOTT COLLINS KEITH DODDS MARK FRANCIS AL SPRINGER BOB DESANTIS JANE CHOI JENNIFER DONALDSON MARTIN W. SCHNURR GREG CONNER DEAN BARLEY KRISTY JENNINGS SHAWN SCHOEDEL WADE AMELUNG ROBERT P. OVERBAUGH MARK M. GLEASON FOLLOW UP IN CHAMBERS  WHO DO YOU KNOW?   HOW? WHY? RELATIONSHIP? HOW WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? *************************** 14 8. HAVE YOU EVER SERVED AS A JUROR IN A CIVIL OR CRIMINAL CASE OR AS A MEMBER OF A GRAND JURY IN EITHER THE FEDERAL OR STATE COURTS? FOLLOW-UP IN CHAMBERS  TYPE OF CASE?  WHAT COURT?  HOW LONG AGO?  WITHOUT DISCLOSING RESULT OF CASE, DID YOU REACH A VERDICT?  CAN YOU BE FAIR AND IMPARTIAL IN THIS CASE? *************************** 9. HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN INVOLVED IN A CIVIL LAWSUIT AS A PARTY, A WITNESS OR IN ANY OTHER CAPACITY? FOLLOW-UP IN CHAMBERS  HOW WERE YOU INVOLVED?  WHAT KIND OF CASE?  WHAT WAS THE OUTCOME?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 15 *************************** 10. BOTH PARTIES TO THIS CASE ARE BUSINESSES. DO YOU HAVE ANY STRONG PERSONAL FEELINGS FOR OR AGAINST BUSINESSES THAT WOULD AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE AND/OR PREVENT YOU FROM TREATING EACH PARTY AS EQUALS UNDER THE LAW? FOLLOW-UP IN CHAMBERS   PLEASE EXPLAIN SUCH FEELINGS PERSONAL EXPERIENCE  WHY / HOW LONG?  COULD YOU PUT THOSE FEELINGS ASIDE AND DECIDE THIS CASE ONLY ON THE FACTS AND EVIDENCE PRESENTED THROUGH THE WITNESSES AND EVIDENCE IN THIS TRIAL?  COULD YOU BE FAIR & IMPARTIAL? *************************** 11. ALL WITNESSES ARE SWORN TO TELL THE TRUTH AND THEIR TESTIMONY IS TO BE FAIRLY AND IMPARTIALLY ASSESSED WITHOUT ANY PRECONCEIVED NOTION OF BIAS OR PREJUDICE. IS THERE ANY REASON OF WHICH YOU ARE AWARE THAT YOU 16 COULD NOT OR WOULD NOT FAIRLY AND IMPARTIALLY ASSESS THE TESTIMONY OF EACH INDIVIDUAL WITNESS IN THIS TRIAL? *************************** 12. DO YOU HAVE ANY HEALTH CONDITION, FAMILY OR JOB-RELATED MATTER OR OTHER PERSONAL MATTER WHICH WOULD INTERFERE WITH YOUR ABILITY TO SERVE AS A JUROR IN THIS MATTER FOR A WEEK OR A WEEK AND A-HALF? FOLLOW-UP IN CHAMBERS  IF SO, WHAT IS THE NATURE OF THE MATTER WHICH MAY INTERFERE WITH YOUR ABILITY TO SERVE AS A JUROR? *************************** 13. DO YOU HAVE ANY INNATE BIAS, PREJUDICE OR CRITICISM OF THE JURY SYSTEM AS A MEANS OF RESOLVING DISPUTES? FOLLOW-UP IN CHAMBERS  IF SO, WHAT IS THE NATURE OF AND BIAS OR PREJUDICE YOU MAY HAVE AGAINST THE JURY SYSTEM OR CRITICISM OF IT AS A MEANS OF RESOLVING DISPUTES? 17 *************************** 14. DO YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY HAVE A BACKGROUND IN ACCOUNTING, FINANCING OR ECONOMICS? FOLLOW-UP IN CHAMBERS  IF SO, PLEASE DESCRIBE. *************************** 15. HAVE YOU OR A MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN EMPLOYED AT AN AUTO, TRUCK OR MOBILE EQUIPMENT DEALER OR DISTRIBUTOR, OR BUSINESS, WHICH SERVICES THEM? FOLLOW-UP IN CHAMBERS  AND, IF SO, WHAT IS THE NATURE OF THE WORK YOU PERFORMED THERE? *************************** 16. HAVE YOU OR A MEMBER OF YOUR IMMEDIATE FAMILY EVER WORKED IN A LAW FIRM OR LAW OFFICE? *************************** 17. DO YOU NOT USE EMAIL ON A REGULAR BASIS? *************************** 18 18. HAVE YOU OR A MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN EMPLOYED IN A SALES POSITION, OR IN A POSITION THAT INVOLVES ASSIGNED SALES OR DISTRIBUTION TERRITORIES? *************************** 19. HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN EMPLOYED IN THE SCRAP OR DEMOLITION INDUSTRIES? *************************** 20. DO YOU KNOW ANY OF THE OTHER PROSPECTIVE JURORS? *************************** 21. HAVE YOU, OR ANY MEMBER OF YOUR IMMEDIATE FAMILY, EVER BEEN EMPLOYED BY, OR DONE BUSINESS WITH, HYUNDAI CORPORATION OR A SUBSIDIARY? FOLLOW-UP IN CHAMBERS  PLEASE DESCRIBE. *************************** 22. NOW HAVING HEARD ALL THE PRELIMINARY INFORMATION REGARDING THIS CASE, IS THERE ANY REASON 19 OF WHICH YOU'RE AWARE THAT YOU COULD NOT OR WOULD NOT FOLLOW THE LAW AS I INSTRUCT YOU REGARDING LIABILITY AND DAMAGES AND SERVE AS A FAIR AND IMPARTIAL JUROR IN THIS CASE, BASING YOUR VERDICT ON THE FACTS AS YOU DETERMINE AND THE LAW AS I INSTRUCT YOU? FOLLOW-UP IN CHAMBERS  WHAT REASON?  HOW DOES IT AFFECT YOUR JURY SERVICE IN THIS CASE? RETIRE TO CHAMBERS FOR INDIVIDUAL VOIR DIRE AND THEN RETURN TO COURT FOR ATTORNEYS - STRIKE PROCESS 20

=== Sample Patent Final Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA GRANT STREET GROUP, INC., Plaintiff, v. REALAUCTION.COM, LLC, Defendant. 2:09-cv-01407 Judge Mark R. Hornak COURT’S FINAL JURY INSTRUCTIONS 1. NOW THAT YOU HAVE HEARD ALL OF THE EVIDENCE AND THE ARGUMENTS OF COUNSEL, IT BECOMES MY DUTY, AS JUDGE, TO GIVE YOU THE INSTRUCTIONS OF THE COURT CONCERNING THE LAW APPLICABLE TO THIS CASE. I WILL READ THESE INSTRUCTIONS TO YOU IN OPEN COURT AND YOU WILL HAVE A COPY WITH YOU IN THE JURY ROOM DURING YOUR DELIBERATIONS. SO, TO THE EXTENT THAT YOU TAKE NOTES, KNOW THAT YOU'LL HAVE THESE INSTRUCTIONS SO YOU DON'T HAVE TO NOTE THESE REMARKS IF YOU DON’T WANT TO. 2. IT IS YOUR DUTY, AS JURORS, TO FOLLOW THE LAW AS STATED IN THESE INSTRUCTIONS, AND TO APPLY THE LAW TO THE FACTS AS YOU FIND THEM TO BE FROM THE EVIDENCE IN THIS CASE. 1 YOU ARE NOT TO SINGLE OUT ANY ONE OF THESE INSTRUCTIONS ALONE AS STATING THE LAW, BUT RATHER YOU MUST CONSIDER THE INSTRUCTIONS AS A WHOLE. YOU ARE NOT TO BE CONCERNED ABOUT THE WISDOM OF ANY RULE OF LAW STATED BY ME. YOU MUST FOLLOW AND APPLY THE LAW. 3. IF THERE IS ANY CONTRADICTION BETWEEN THE PRELIMINARY INSTRUCTIONS I GAVE YOU AT THE BEGINNING OF THE CASE AND THESE FINAL INSTRUCTIONS, PLEASE KEEP IN MIND THAT THESE FINAL INSTRUCTIONS CONTROL AND SHOULD BE FOLLOWED BY YOU IN REACHING YOUR DECISION IN THIS CASE. 4. AT THE OUTSET, YOU SHOULD UNDERSTAND THAT I AM ABSOLUTELY NEUTRAL IN PRESENTING THESE INSTRUCTIONS TO YOU. IT IS NOT MY FUNCTION TO DETERMINE THE FACTS, BUT RATHER, YOURS. 5. YOU MUST PERFORM YOUR DUTIES AS JURORS WITHOUT BIAS OR PREJUDICE AS TO EITHER PARTY. THE LAW DOES NOT PERMIT YOU TO BE GOVERNED BY SYMPATHY, PREJUDICE, OR PUBLIC OPINION. EACH PARTY EXPECTS THAT YOU WILL CAREFULLY AND IMPARTIALLY CONSIDER ALL OF THE EVIDENCE, FOLLOW THE LAW AS 2 IT IS NOW BEING GIVEN TO YOU, AND REACH A JUST VERDICT, REGARDLESS OF THE CONSEQUENCES. 6. ALL OF THE INSTRUCTIONS OF LAW GIVEN TO YOU BY THE COURT - THOSE GIVEN TO YOU AT THE BEGINNING OF THE TRIAL, THOSE GIVEN TO YOU DURING THE TRIAL, AND THESE FINAL INSTRUCTIONS - - MUST GUIDE AND GOVERN YOUR DELIBERATIONS. REGARDLESS OF ANY OPINION YOU MAY HAVE AS TO WHAT THE LAW IS OR OUGHT TO BE. IT WOULD BE A VIOLATION OF YOUR SWORN DUTY TO BASE A VERDICT UPON ANY VIEW OF THE LAW OTHER THAN THAT GIVEN IN THE INSTRUCTIONS OF THE COURT, JUST AS IT WOULD ALSO BE A VIOLATION OF YOUR SWORN DUTY, AS JUDGES OF THE FACTS, TO BASE A VERDICT UPON ANYTHING OTHER THAN THE EVIDENCE IN THE CASE. 7. SIMPLY BECAUSE A DEFENDANT HAS BEEN SUED DOES NOT MEAN THAT THE DEFENDANT IS LIABLE. ANYONE CAN FILE A LAWSUIT AGAINST ANOTHER. THE FACT THAT PLAINTIFF, GRANT STREET GROUP, INC., FILED A CLAIM AGAINST DEFENDANT, REALAUCTION.COM, LLC, AND PURSUED IT THROUGH THIS TRIAL DOES NOT MEAN THAT REALAUCTION.COM, LLC DID ANYTHING TO 3 THEM THAT IS WRONG UNDER THE LAW. I THEREFORE INSTRUCT YOU THAT YOU MUST NOT INFER THAT REALAUCTION.COM, LLC DID ANYTHING UNLAWFUL FROM THE MERE FACT THAT THIS LAWSUIT WAS FILED AND BROUGHT TO TRIAL. 8. THE WORD "EVIDENCE" HAS BEEN USED EXTENSIVELY THROUGHOUT THIS TRIAL. YOUR DELIBERATIONS ARE TO BE LIMITED TO THE EVIDENCE ADMITTED FOR YOUR CONSIDERATION IN THIS CASE WHICH CONSISTS OF THE SWORN TESTIMONY OF THE WITNESSES AND ALL DOCUMENTS, PHOTOS, OR OTHER ITEMS THAT MAY HAVE BEEN ADMITTED INTO EVIDENCE OR STIPULATED TO BY THE PARTIES. BECAUSE THE LAWYERS ARE REQUIRED TO PREPARE EXHIBITS LONG BEFORE A TRIAL, THE EXHIBITS ADMITTED AT TRIAL MAY SKIP OVER MANY NUMBERS OR LETTERS. THAT IS NOT A MATTER OF ANY CONCERN TO THE COURT OR YOU. 9. ALSO, I HAVE ADVISED YOU THAT THE RULES OF EVIDENCE PERMIT THE COURT TO ACCEPT CERTAIN FACTS THAT CANNOT REASONABLY BE DISPUTED. THIS IS CALLED JUDICIAL NOTICE. YOU ARE TO ACCEPT AS PROVED SUCH FACTS AS I HAVE STATED TO YOU EVEN THOUGH NO EVIDENCE HAS BEEN INTRODUCED TO PROVE 4 THOSE FACTS. YOU MUST ACCEPT THESE FACTS AS TRUE FOR PURPOSES OF THIS CASE. 10. CERTAIN THINGS, HOWEVER, ARE NOT EVIDENCE, SUCH AS: A. OPENING STATEMENTS, ARGUMENTS, QUESTIONS AND COMMENTS BY THE ATTORNEYS REPRESENTING THE PARTIES IN THE CASE AND CLOSING ARGUMENTS ARE NOT EVIDENCE. B. OBJECTIONS ARE NOT EVIDENCE. LAWYERS HAVE A RIGHT TO OBJECT WHEN THEY BELIEVE SOMETHING IS IMPROPER. ONLY BY RAISING AN OBJECTION CAN A LAWYER REQUEST AND OBTAIN A RULING FROM THE COURT ON THE ADMISSIBILITY OF THE EVIDENCE BEING OFFERED BY THE OTHER SIDE. YOU SHOULD NOT BE INFLUENCED AGAINST AN ATTORNEY OR HIS CLIENT BECAUSE THE ATTORNEY HAS MADE OBJECTIONS. DO NOT ATTEMPT, MOREOVER, TO INTERPRET MY RULINGS ON OBJECTIONS AS SOMEHOW INDICATING TO YOU WHO I BELIEVE SHOULD WIN OR LOSE THE CASE. IF I SUSTAINED AN OBJECTION TO A QUESTION, YOU MUST IGNORE THE QUESTION AND MUST NOT TRY TO GUESS WHAT THE ANSWER MIGHT HAVE BEEN. 5 C. TESTIMONY THAT WAS STRICKEN FROM THE RECORD, OR THAT I TOLD YOU TO DISREGARD, IS NOT EVIDENCE AND MUST NOT BE CONSIDERED AS SUCH. D. ANYTHING YOU MAY HAVE SEEN OR HEARD ABOUT THIS CASE OUTSIDE THE COURTROOM IS NOT EVIDENCE. 11. GENERALLY SPEAKING, THERE ARE TWO TYPES OF EVIDENCE THAT ARE GENERALLY PRESENTED DURING A TRIAL - DIRECT EVIDENCE AND CIRCUMSTANTIAL EVIDENCE. "DIRECT EVIDENCE" IS DIRECT PROOF OF A FACT, SUCH AS TESTIMONY BY A WITNESS ABOUT WHAT THE WITNESS SAID OR SAW OR HEARD OR DID, ESSENTIALLY WHAT THE WITNESS PERSONALLY KNOWS. THE EVIDENCE IN THIS CASE CONSISTS NOT ONLY OF THE TESTIMONY FROM THE WITNESSES AND THE DOCUMENTS WHICH HAVE BEEN OFFERED INTO EVIDENCE AND SHOWN TO YOU, BUT ALSO INCLUDES SUCH FAIR AND REASONABLE INFERENCES AS PROPERLY FLOW FROM THE FACTS WHICH ARE NOT DISPUTED OR WHICH YOU BELIEVE TO BE TRUE. THIS IS SOMETIMES REFERRED TO AS "CIRCUMSTANTIAL EVIDENCE" AND IS SIMPLY INDIRECT PROOF OF ONE OR MORE FACTS FROM WHICH YOU COULD FIND ANOTHER FACT. REMEMBER MY RAIN 6 EXAMPLE FROM THE PRELIMINARY INSTRUCTIONS. ALTHOUGH YOU CAN HARDLY SEE OUTSIDE FROM THIS ROOM, IF ONE OR MORE PERSONS WALKED IN WITH A WET TRENCH COAT OR DRIPPING UMBRELLA, IT WOULD BE REASONABLE AND LOGICAL TO CONCLUDE FROM THAT CIRCUMSTANTIAL OR INDIRECT EVIDENCE THAT IT HAD BEEN RAINING OUTSIDE. 12. YOU SHOULD CONSIDER BOTH KINDS OF EVIDENCE. THE LAW MAKES NO DISTINCTION BETWEEN THE WEIGHT TO BE GIVEN TO EITHER DIRECT OR CIRCUMSTANTIAL EVIDENCE. WHILE YOU MAY CONSIDER ONLY THE EVIDENCE IN THE CASE IN ARRIVING AT YOUR VERDICT, YOU ARE PERMITTED TO DRAW SUCH REASONABLE INFERENCES FROM THE TESTIMONY AND EXHIBITS AS YOU FEEL ARE JUSTIFIED IN THE LIGHT OF COMMON SENSE. YOU ARE TO DECIDE HOW MUCH WEIGHT TO GIVE ANY EVIDENCE. 13. YOU, LADIES AND GENTLEMEN OF THE JURY, SHOULD DRAW UPON YOUR OWN EXPERIENCES IN LIFE AND YOUR OWN COMMON SENSE IN INTERPRETING THE FACTS WHICH HAVE BEEN PRESENTED BY THE PARTIES IN THE CASE. IN OTHER WORDS, YOU MAY REACH CONCLUSIONS WHICH REASON AND COMMON SENSE LEAD YOU TO 7 REACH FROM THE FACTS WHICH HAVE BEEN ESTABLISHED BY THE EVIDENCE IN THE CASE. 14. YOU HAVE ALSO HEARD FROM WITNESSES WHO GAVE OPINIONS ABOUT MATTERS REQUIRING SPECIAL KNOWLEDGE OR SKILL. YOU SHOULD JUDGE THIS TESTIMONY IN THE SAME WAY THAT YOU JUDGE THE TESTIMONY OF ANY OTHER WITNESS. THE FACT THAT SUCH PERSON HAS GIVEN AN OPINION DOES NOT MEAN THAT YOU ARE REQUIRED TO ACCEPT IT. GIVE THE TESTIMONY WHATEVER WEIGHT YOU THINK IT DESERVES, CONSIDERING THE REASONS GIVEN FOR THE OPINION, THE WITNESS’S QUALIFICATIONS, AND ALL OF THE OTHER EVIDENCE IN THE CASE. 15. I HAVE SAID THAT YOU MUST CONSIDER ALL OF THE EVIDENCE. THIS DOES NOT MEAN, HOWEVER, THAT YOU MUST ACCEPT ALL OF THE EVIDENCE AS TRUE OR ACCURATE. 16. IN ORDER TO ARRIVE AT THE TRUE FACTS, AND DRAW THE REASONABLE AND PROPER INFERENCES THEREFROM, YOU MUST PASS UPON THE CREDIBILITY, THAT IS, THE BELIEVABILITY, OF EACH WITNESS. YOU, AS JURORS, ARE THE SOLE JUDGES OF THE 8 CREDIBILITY OF THE WITNESSES AND THE WEIGHT THEIR TESTIMONY DESERVES. 17. YOU MAY BE GUIDED BY THE APPEARANCE AND CONDUCT OF THE WITNESS, OR THE MANNER IN WHICH THE WITNESS TESTIFIES, OR BY THE CHARACTER OF THE TESTIMONY GIVEN, OR BY EVIDENCE TO THE CONTRARY OF TESTIMONY GIVEN. 18. YOU SHOULD CAREFULLY SCRUTINIZE ALL THE TESTIMONY GIVEN, THE CIRCUMSTANCES UNDER WHICH EACH WITNESS HAS TESTIFIED, AND EVERY MATTER IN EVIDENCE WHICH TENDS TO SHOW WHETHER A WITNESS IS WORTHY OF BELIEF. CONSIDER EACH WITNESS' INTELLIGENCE, MOTIVE AND STATE OF MIND, AND DEMEANOR OR MANNER WHILE ON THE STAND. CONSIDER THE WITNESS' ABILITY TO OBSERVE THE MATTERS AS TO WHICH HE OR SHE HAS TESTIFIED AND WHETHER HE OR SHE IMPRESSES YOU AS HAVING AN ACCURATE RECOLLECTION OF THESE MATTERS. 19. CONSIDER ALSO ANY RELATION EACH WITNESS MAY BEAR TO EITHER SIDE OF THE CASE; THE MANNER IN WHICH EACH WITNESS MIGHT BE AFFECTED BY THE VERDICT; AND THE EXTENT TO WHICH, IF 9 AT ALL, EACH WITNESS IS EITHER SUPPORTED OR CONTRADICTED BY OTHER EVIDENCE IN THE CASE. 20. YOU SHOULD CONSIDER WHETHER THE WITNESS GAVE FRANK AND STRAIGHTFORWARD ANSWERS TO THE QUESTIONS OR WHETHER THE ANSWERS WERE EVASIVE OR MISLEADING. YOU SHOULD CONSIDER THE CREDIBILITY OF A WITNESS IN THE LIGHT OF CONTRADICTORY TESTIMONY, IF ANY. 21. IN CONSIDERING THE EVIDENCE, YOU MAY FIND INCONSISTENCIES OR DISCREPANCIES IN THE TESTIMONY OF A WITNESS, OR BETWEEN THE TESTIMONY OF DIFFERENT WITNESSES, WHICH MAY OR MAY NOT CAUSE YOU, THE JURY, TO DISCREDIT SUCH TESTIMONY. TWO OR MORE PERSONS WITNESSING AN EVENT OR A TRANSACTION MAY SEE OR HEAR IT DIFFERENTLY; AN INNOCENT MISRECOLLECTION, LIKE FAILURE OF RECOLLECTION, IS NOT AN UNCOMMON EXPERIENCE. IN WEIGHING THE EFFECT OF A DISCREPANCY, ALWAYS CONSIDER WHETHER IT PERTAINS TO A MATTER OF IMPORTANCE OR AN UNIMPORTANT DETAIL, AND WHETHER THE DISCREPANCY RESULTS FROM INNOCENT ERROR OR INTENTIONAL FALSEHOOD. 10 22. EVEN ACTUAL CONTRADICTIONS IN THE TESTIMONY OF WITNESSES DO NOT NECESSARILY MEAN THAT A WITNESS HAS BEEN WILLFULLY FALSE. POOR MEMORY IS NOT UNCOMMON. SOMETIMES A WITNESS FORGETS; SOMETIMES ONE REMEMBERS INCORRECTLY. IT IS ALSO TRUE THAT TWO PERSONS WITNESSING AN INCIDENT MAY SEE OR HEAR IT DIFFERENTLY. 23. IF DIFFERENT PARTS OF THE TESTIMONY OF ANY WITNESS OR WITNESSES APPEAR TO BE INCONSISTENT, YOU THE JURY SHOULD TRY TO RECONCILE THE CONFLICTING STATEMENTS, WHETHER OF THE SAME OR DIFFERENT WITNESSES, AND YOU SHOULD DO SO IF IT CAN BE DONE FAIRLY AND SATISFACTORILY. 24. IF, HOWEVER, YOU DECIDE THAT THERE IS A GENUINE AND IRRECONCILABLE CONFLICT OF TESTIMONY, IT IS YOUR FUNCTION AND DUTY TO DETERMINE WHICH, IF ANY, OF THE CONTRADICTORY STATEMENTS YOU WILL BELIEVE. 25. A WITNESS MAY BE DISCREDITED OR IMPEACHED BY CONTRADICTORY EVIDENCE OR BY EVIDENCE THAT AT SOME OTHER TIME THE WITNESS HAS SAID OR DONE SOMETHING, OR HAS FAILED TO SAY OR DO SOMETHING THAT IS INCONSISTENT WITH THE 11 WITNESS' PRESENT TESTIMONY. IF YOU BELIEVE ANY WITNESS HAS BEEN IMPEACHED AND THUS DISCREDITED, YOU MAY GIVE THE TESTIMONY OF THAT WITNESS SUCH CREDIBILITY, IF ANY, YOU THINK IT MAY DESERVE. 26. IF YOU DECIDE THAT A WITNESS HAS DELIBERATELY FALSIFIED TESTIMONY ON A SIGNIFICANT POINT, YOU SHOULD TAKE THIS INTO CONSIDERATION IN DECIDING WHETHER OR NOT TO BELIEVE THE REST OF THE TESTIMONY; AND YOU MAY REFUSE TO BELIEVE THE REST OF THE TESTIMONY, BUT YOU ARE NOT REQUIRED TO DO SO. 27. YOU ARE NOT REQUIRED TO ACCEPT TESTIMONY, EVEN THOUGH THE TESTIMONY IS UNCONTRADICTED AND THE WITNESS IS NOT DISCREDITED. FOR EXAMPLE, YOU MAY DECIDE, BECAUSE OF THE WITNESS' BEARING AND DEMEANOR, BECAUSE OF THE INHERENT IMPROBABILITY OF HIS OR HER TESTIMONY, OR BECAUSE OF THE WITNESS' TESTIMONY ON OTHER SUBJECTS, THAT SUCH TESTIMONY IS NOT WORTHY OF BELIEF. 28. DURING THIS TRIAL, YOU HAVE HEARD THE TERM "DEPOSITION" USED BY THE LAWYERS. A DEPOSITION IS SIMPLY THE 12 SWORN TESTIMONY OF A PERSON TAKEN BY THE ATTORNEYS DURING THE PENDENCY OF A LAWSUIT. THE TRANSCRIPT OR VIDEOTAPE OF THAT TESTIMONY MAY BE PRESENTED IN THIS TRIAL IF THE PERSON OR WITNESS IS NOT AVAILABLE TO APPEAR OR IF THE WITNESS APPEARS AND TESTIFIES TO SOMETHING DIFFERENTLY THAN PREVIOUSLY TESTIFIED UNDER OATH. IN THAT EVENT THE DEPOSITION TRANSCRIPT MAY BE USED TO TRY TO ESTABLISH A PRIOR INCONSISTENT STATEMENT OR OTHERWISE AFFECT THE CREDIBILITY OR BELIEVABILITY OF THE WITNESS. 29. ALSO, THE WEIGHT OF EVIDENCE IS NOT NECESSARILY DETERMINED BY THE NUMBER OF WITNESSES TESTIFYING TO THE EXISTENCE OR NON-EXISTENCE OF ANY FACT OR THE NUMBER OF EXHIBITS OFFERED BY A PARTY. YOU MAY FIND THAT THE TESTIMONY OF A SMALLER NUMBER OF WITNESSES AS TO ANY FACT IS MORE CREDIBLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES TO THE CONTRARY. 30. AFTER MAKING YOUR OWN JUDGMENT, YOU WILL GIVE THE TESTIMONY OF EACH WITNESS SUCH WEIGHT, IF ANY, AS YOU THINK 13 IT MAY DESERVE. IN SHORT, YOU MAY ACCEPT OR REJECT THE TESTIMONY OF ANY WITNESS IN WHOLE OR IN PART. 31. THE LAW DOES NOT REQUIRE ANY PARTY TO CALL AS WITNESSES ALL PERSONS WHO MAY HAVE BEEN PRESENT AT ANY TIME OR PLACE INVOLVED IN THE CASE, OR WHO MAY APPEAR TO HAVE SOME KNOWLEDGE OF THE MATTERS AT ISSUE AT THIS TRIAL. GENERALLY, ALL WITNESSES ARE AVAILABLE TO ALL PARTIES AND NO NEGATIVE INFERENCE IS TO BE DRAWN BY YOU FROM THE FACT THAT CERTAIN POTENTIAL WITNESSES WERE NOT CALLED BY EITHER SIDE TO TESTIFY. ALSO, THE LAW DOES NOT REQUIRE ANY PARTY TO PRODUCE AS EXHIBITS ALL PAPERS AND THINGS MENTIONED IN THE CASE. THE PARTIES AND THEIR LAWYERS DECIDE WHICH WITNESS TESTIMONY AND EVIDENCE TO PRESENT AT TRIAL AND SUCH TESTIMONY AND EVIDENCE MAY BE LIMITED AT TIMES BY THE RULES OF EVIDENCE ENFORCED BY THE COURT. HOWEVER, YOU MUST DECIDE THE ISSUES IN THE CASE BASED ONLY UPON THE TESTIMONY AND EVIDENCE WHICH HAS BEEN PRESENTED TO YOU HERE IN THE COURTROOM. 14 32. I WILL NOW INSTRUCT YOU MORE FULLY ON THE ISSUES YOU MUST ADDRESS IN THIS CASE. CONTENTIONS OF THE PARTIES 33. AS YOU HAVE ALREADY HEARD, THIS IS A CASE ASSERTING THE INFRINGEMENT OF UNITED STATES PATENT NO. 7,523,063, WHICH I WILL CALL THE ‘063 PATENT. THE PLAINTIFF IN THIS CASE IS GRANT STREET. GRANT STREET HAS ACCUSED THE DEFENDANT, REALAUCTION, OF INFRINGING GRANT STREET’S ‘063 PATENT BY USING PATENTED METHODS TO CONDUCT COMPUTER-MEDIATED AUCTIONS OF FINANCIAL OR LEGAL INSTRUMENTS OVER AN ELECTRONIC NETWORK. 34. GRANT STREET ACCUSES REALAUCTION OF USING TWO PRODUCTS -- REALFORECLOSE AND REALTAXLIEN – TO INFRINGE CERTAIN CLAIMS OF THE ‘063 PATENT. SPECIFICALLY, GRANT STREET ARGUES THAT REALFORECLOSE INFRINGES CLAIMS 1, 11, 15, 22, 23, 35, AND 39 OF THE ‘063 PATENT, AND REALTAXLIEN INFRINGES CLAIMS 1, 22, 35 AND 39 THE ‘063 PATENT. WE WILL REFER TO THESE SPECIFIC CLAIMS AS THE “ASSERTED CLAIMS.” GRANT STREET IS ENTITLED TO 15 MONEY DAMAGES IF IT PROVES THESE ALLEGATIONS. GRANT STREET ALSO ARGUES THAT REALAUCTION’S INFRINGEMENT OF THIS PATENT HAS BEEN WILLFUL. 35. REALAUCTION DENIES THAT IT IS INFRINGING ANY OF THE ASSERTED CLAIMS OF THE ‘063 PATENT BY USING EITHER REALFORECLOSE OR REALTAXLIEN AND, THEREFORE, REALAUCTION BELIEVES THAT GRANT STREET IS NOT ENTITLED TO ANY MONEY DAMAGES. 36. REALAUCTION ALSO ARGUES THAT EACH OF THE ASSERTED CLAIMS OF THE ‘063 PATENT IS INVALID. REALAUCTION ARGUES THAT THE CLAIMS ARE INVALID FOR TWO REASONS: FIRST, THAT ALL THE ASSERTED CLAIMS ARE INVALID FOR BEING ANTICIPATED OR MADE OBVIOUS BY THE PRIOR ART; AND SECOND, THAT THE CLAIMS FAIL TO MEET THE WRITTEN DESCRIPTION REQUIREMENT. IF A CLAIM IS INVALID, THEN REALAUCTION CANNOT INFRINGE THE CLAIM AS A MATTER OF LAW. 37. GRANT STREET DISAGREES THAT THE CLAIMS OF THE ‘063 PATENT ARE INVALID. 16 38. YOUR TASK IS TO DECIDE WHETHER REALAUCTION HAS INFRINGED THE ASSERTED CLAIMS OF THE ‘063 PATENT AND WHETHER ANY OF THE ASSERTED CLAIMS OF THE ‘063 PATENT ARE INVALID. IF YOU DECIDE THAT ANY OF THE ASSERTED CLAIMS OF THE ‘063 PATENT HAVE BEEN INFRINGED AND ARE NOT INVALID (IN OTHER WORDS, IF YOU DECIDE THAT ANY OF THE ASSERTED CLAIMS ARE BOTH VALID AND INFRINGED), THEN YOU WILL NEED TO DECIDE THE AMOUNT OF MONEY DAMAGES THAT SHOULD BE AWARDED TO GRANT STREET TO COMPENSATE IT FOR THE INFRINGEMENT. 39. IF YOU DECIDE THAT REALAUCTION HAS INFRINGED A VALID CLAIM, YOU ALSO WILL NEED TO MAKE A FINDING AS TO WHETHER THE INFRINGEMENT WAS WILLFUL. IF YOU DECIDE THAT ANY INFRINGEMENT WAS WILLFUL, THAT DECISION SHOULD NOT AFFECT ANY DAMAGES AWARD YOU GIVE. I WILL DISCUSS WILLFULNESS LATER. 40. ALL PATENTS ISSUED BY THE UNITED STATES PATENT AND TRADEMARK OFFICE ARE PRESUMED TO BE VALID. INVALIDITY, HOWEVER, IS A DEFENSE TO INFRINGEMENT. THEREFORE, EVEN THOUGH THE PATENT OFFICE EXAMINER HAS ALLOWED THE CLAIMS 17 OF PATENT ‘063, YOU, THE JURY, HAVE THE ULTIMATE RESPONSIBILITY FOR DECIDING WHETHER THE CLAIMS ARE INVALID. REALAUCTION HAS THE BURDEN OF PROVING THAT A PATENT CLAIM IS INVALID BY CLEAR AND CONVINCING EVIDENCE. THIS IS A HIGHER STANDARD THAN A PREPONDERANCE OF THE EVIDENCE. I WILL NOW DISCUSS THOSE STANDARDS. BURDENS OF PROOF PREPONDERANCE OF THE EVIDENCE 41. GRANT STREET HAS THE BURDEN OF PROVING INFRINGEMENT AND DAMAGES BY A PREPONDERANCE OF THE EVIDENCE. SOMETHING IS PROVEN BY A PREPONDERANCE OF THE EVIDENCE IF IT IS SHOWN THAT IT IS MORE LIKELY TO BE TRUE THAN NOT TRUE. TO PUT IT DIFFERENTLY, IF YOU WERE TO PUT GRANT STREET’S INFRINGEMENT EVIDENCE AND REALAUCTION’S NON- INFRINGEMENT EVIDENCE ON THE OPPOSITE SIDES OF A SCALE, THE EVIDENCE SUPPORTING GRANT STREET’S CLAIMS WOULD HAVE TO MAKE THE SCALES TIP JUST SOMEWHAT ON GRANT STREET’S SIDE FOR YOU TO FIND INFRINGEMENT. 18 42. IF YOU FIND THE PATENTS ARE INFRINGED AND NOT INVALID, GRANT STREET’S BURDEN OF PROOF FOR PROVING ITS DAMAGES IS THE SAME STANDARD -- A PREPONDERANCE OF THE EVIDENCE. CLEAR AND CONVINCING EVIDENCE 43. SOME OF THE CLAIMS AND DEFENSES HERE MUST BE PROVEN BY CLEAR AND CONVINCING EVIDENCE. IT IS A HIGHER STANDARD OF PROOF THAN “PREPONDERANCE OF THE EVIDENCE.” CLEAR AND CONVINCING EVIDENCE IS EVIDENCE THAT SHOWS THAT SOMETHING IS HIGHLY PROBABLE TO BE THE CASE. IN OTHER WORDS, IT IS EVIDENCE THAT LEAVES YOU WITH A CLEAR CONVICTION THAT THE FACT HAS BEEN PROVEN. 44. REALAUCTION IS ASSERTING THAT GRANT STREET’S ‘063 PATENT IS INVALID FOR VARIOUS REASONS. TO PROVE THAT ANY CLAIM OF THE ‘063 PATENT IS INVALID, REALAUCTION MUST PERSUADE YOU BY CLEAR AND CONVINCING EVIDENCE THAT IT IS SO. THAT IS, YOU MUST BE LEFT WITH A CLEAR CONVICTION THAT THE CLAIM IS INVALID. 19 45. GRANT STREET IS ASSERTING THAT REALAUCTION INFRINGED THE ‘063 PATENT AND THAT SUCH INFRINGEMENT WAS WILLFUL. THUS, IF YOU FIND THAT REALAUCTION INFRINGED, YOU MUST THEN CONSIDER WHETHER THE INFRINGEMENT WAS WILLFUL. GRANT STREET MUST PROVE WILLFULNESS BY CLEAR AND CONVINCING EVIDENCE, THAT IS YOU MUST BE LEFT WITH A CLEAR CONVICTION THAT ANY INFRINGEMENT WAS WILLFUL TO FIND WILLFULLNESS. 46. YOU MAY HAVE HEARD ELSEWHERE OF THE PHRASE BEYOND A REASONABLE DOUBT. THAT BURDEN DOES NOT APPLY TO ANYTHING AT ALL IN THIS CASE. IT APPLIES ONLY IN CRIMINAL CASES. THE CLEAR AND CONVINCING STANDARD OF PROOF DOES NOT REQUIRE PROOF BEYOND A REASONABLE DOUBT. ON A SCALE OF THESE VARIOUS STANDARDS OF PROOF, AS YOU MOVE FROM PREPONDERANCE OF THE EVIDENCE, WHERE THE PROOF NEED ONLY BE SUFFICIENT TO TIP THE SCALE IN FAVOR OF THE PARTY PROVING THE FACT, TO BEYOND A REASONABLE DOUBT, WHERE THE FACT MUST BE PROVEN TO A VERY HIGH DEGREE OF CERTAINTY, YOU MAY 20 THINK OF CLEAR AND CONVINCING EVIDENCE AS BEING BETWEEN THE TWO STANDARDS. CLAIM CONSTRUCTION - GENERALLY 47. BEFORE YOU CAN DECIDE MANY OF THE ISSUES IN THIS CASE, YOU WILL NEED TO UNDERSTAND THE ROLE OF PATENT “CLAIMS.” THE PATENT CLAIMS ARE THE NUMBERED SENTENCES AT THE END OF THE PATENT. THE CLAIMS ARE IMPORTANT BECAUSE IT IS THE WORDS OF THE CLAIMS THAT DEFINE WHAT A PATENT COVERS. THE FIGURES AND TEXT IN THE REST OF THE PATENT PROVIDE A DESCRIPTION AND/OR EXAMPLES OF THE INVENTION AND PROVIDE A CONTEXT FOR THE CLAIMS, BUT IT IS THE CLAIMS THAT DEFINE THE BREADTH OF THE PATENT’S COVERAGE. EACH CLAIM IS EFFECTIVELY TREATED AS IF IT WAS A SEPARATE PATENT, AND EACH CLAIM MAY COVER MORE OR LESS THAN ANOTHER CLAIM. THEREFORE, WHAT A PATENT COVERS DEPENDS, IN TURN, ON WHAT EACH OF ITS CLAIMS COVERS. 48. YOU WILL FIRST NEED TO UNDERSTAND WHAT EACH CLAIM COVERS IN ORDER TO DECIDE WHETHER OR NOT THERE IS 21 INFRINGEMENT OF THE CLAIM AND TO DECIDE WHETHER OR NOT THE CLAIM IS INVALID. THE LAW SAYS THAT IT IS MY ROLE TO DEFINE THE TERMS OF THE CLAIMS AND IT IS YOUR ROLE TO APPLY MY DEFINITIONS TO THE ISSUES THAT YOU ARE ASKED TO DECIDE IN THIS CASE. THEREFORE, I HAVE DETERMINED THE MEANING OF THE CLAIMS AND I WILL PROVIDE TO YOU MY DEFINITIONS OF CERTAIN CLAIM TERMS. YOU MUST ACCEPT MY DEFINITIONS OF THESE WORDS IN THE CLAIMS AS BEING CORRECT. IT IS YOUR JOB TO TAKE THESE DEFINITIONS AND APPLY THEM TO THE ISSUES THAT YOU ARE DECIDING, INCLUDING THE ISSUES OF INFRINGEMENT AND VALIDITY. HOW A CLAIM DEFINES WHAT IT COVERS 49. I WILL NOW EXPLAIN HOW A CLAIM DEFINES WHAT IT COVERS. A CLAIM SETS FORTH, IN WORDS, A SET OF REQUIREMENTS. EACH CLAIM SETS FORTH ITS REQUIREMENTS IN A SINGLE SENTENCE. IF A DEVICE OR A METHOD SATISFIES EACH OF THESE REQUIREMENTS, THEN IT IS COVERED BY THE CLAIM. 50. THERE CAN BE SEVERAL CLAIMS IN A PATENT. EACH CLAIM MAY BE NARROWER OR BROADER THAN ANOTHER CLAIM BY SETTING FORTH MORE OR FEWER REQUIREMENTS. THE COVERAGE OF A 22 PATENT IS ASSESSED CLAIM-BY-CLAIM. IN PATENT LAW, THE REQUIREMENTS OF A CLAIM ARE OFTEN REFERRED TO AS “CLAIM ELEMENTS” OR “CLAIM LIMITATIONS.” WHEN A THING (SUCH AS A PRODUCT OR A METHOD) MEETS ALL OF THE REQUIREMENTS OF A CLAIM, THE CLAIM IS SAID TO “COVER” THAT THING, AND THAT THING IS SAID TO “FALL” WITHIN THE SCOPE OF THAT CLAIM. IN OTHER WORDS, A CLAIM COVERS A PRODUCT OR METHOD WHERE EACH OF THE CLAIM ELEMENTS OR LIMITATIONS IS PRESENT IN THAT PRODUCT OR METHOD. 51. SOMETIMES THE WORDS IN A PATENT CLAIM ARE DIFFICULT TO UNDERSTAND, AND THEREFORE IT IS DIFFICULT TO UNDERSTAND WHAT REQUIREMENTS THESE WORDS IMPOSE. IT IS MY JOB TO EXPLAIN TO YOU THE MEANING OF THE WORDS IN THE CLAIMS AND THE REQUIREMENTS THESE WORDS IMPOSE. 52. BY UNDERSTANDING THE MEANING OF THE WORDS IN A CLAIM AND BY UNDERSTANDING THAT THE WORDS IN A CLAIM SET FORTH THE REQUIREMENTS THAT A PRODUCT OR METHOD MUST MEET IN ORDER TO BE COVERED BY THAT CLAIM, YOU WILL BE ABLE TO UNDERSTAND THE SCOPE OF COVERAGE FOR EACH CLAIM. ONCE 23 YOU UNDERSTAND WHAT EACH CLAIM COVERS, THEN YOU ARE BETTER PREPARED TO DECIDE THE ISSUES THAT YOU WILL BE ASKED TO DECIDE, SUCH AS INFRINGEMENT AND INVALIDITY. 53. I WILL NOW EXPLAIN TO YOU THE MEANING OF SOME OF THE WORDS OF THE CLAIMS IN THIS CASE. IN DOING SO, I WILL EXPLAIN SOME OF THE REQUIREMENTS OF THE CLAIMS. 54. THE MEANING AND SCOPE OF EACH OF THE PATENT CLAIMS IS A QUESTION OF LAW FOR ME TO DECIDE. AS I HAVE PREVIOUSLY INSTRUCTED YOU, YOU MUST ACCEPT MY DEFINITION OF THESE WORDS IN THE CLAIMS AS CORRECT, AND YOU MUST GIVE THE CLAIMS THE SCOPE MY INTERPRETATIONS GIVE THEM. FROM TIME TO TIME THE LAWYERS IN THEIR ARGUMENTS, OR THE WITNESSES IN THEIR TESTIMONY, MAY HAVE SUGGESTED WHAT THEY BELIEVED THE MEANING OR SCOPE OF A GIVEN PATENT CLAIM TO BE. THEIR INTERPRETATIONS CANNOT DETERMINE THE MEANING OR SCOPE OF A CLAIM. THEREFORE, IF YOU BELIEVE THAT ANY WITNESS OR LAWYER MADE A REFERENCE TO THE MEANING OR SCOPE OF A CLAIM THAT IS CONTRARY TO WHAT I HAVE SAID THE MEANING OR SCOPE OF A CLAIM IS, YOU MUST ABIDE BY WHAT I HAVE STATED. 24 55. FOR ANY WORDS IN THE CLAIM FOR WHICH I HAVE NOT PROVIDED YOU WITH A DEFINITION, YOU SHOULD APPLY THEIR COMMON MEANING. YOU SHOULD NOT TAKE MY DEFINITION OF THE LANGUAGE OF THE CLAIMS AS AN INDICATION THAT I HAVE A VIEW REGARDING HOW YOU SHOULD DECIDE THE ISSUES THAT YOU ARE BEING ASKED TO DECIDE, SUCH AS INFRINGEMENT AND INVALIDITY. THOSE ISSUES ARE YOURS TO DECIDE. YOU HAVE BEEN PROVIDED A CHART OF THE CLAIM TERMS THAT I HAVE DEFINED. THE CLAIM TERMS AND THEIR DEFINITIONS WILL ALSO BE IN THE COPY OF MY INSTRUCTIONS THAT WILL BE GIVEN TO THE JURY. 56. Claim Term Financial Instrument Legal Instrument Construction A bond, note, equity, commercial paper. It includes an instrument that is similar to those named in the group. A document that has legal meaning and that is associated with a financial instrument Enforcing at least one condition bidders must satisfy to submit competing bids Enforcing at least one requirement bidders must satisfy to submit competing bids Enforcing at least one condition competing bids must satisfy Enforcing at least one requirement competing bids must satisfy 25 Providing a centralized time indication Providing a centralized time indication with respect to current official auction clock time Receiving, over the network, bids from bidders using said networked devices Receiving bids from bidders over an electronic network using devices that are networked Enabling bidders to modify their bid inputs Permitting comparison of received bids Providing information allowing for display of at least the best bid Providing a way for bidders to modify their bid after the bid has been entered Permitting a comparison of one bid received against another received bid Providing information allowing for display of the best bid. The determination of what is “best” is determined by what the auction refers to as a “best” bid Including enabling bidders to supply conditions to their bids Providing a way for bidders to give condition to their bids Further including performing, for bidders, calculations using bid related inputs Performing for bidders calculations using bid related inputs Wherein the bidding period may be extended after bidding begins The bidding period may be extended after bidding begins 26 Wherein one or more menu-driven web pages are employed to create and modify auction parameters One or more menu-driven web pages are employed to create and modify auction parameters. An example (but not a limiting example of a menu-driven) is an administrative menu illustrated in Fig. 3C. This menu is used to create or modify a number of things such as parameters. An example of parameters (but not a limiting example of parameters) are materials or specification in a notice of sale (e.g., price or coupon parameters) Further including communicating signals relating to said auction over a network at least in part using Hypertext Transfer Protocol Communicating signals relating to the auction over a network at least in part using Hypertext Transfer Protocol THAT CONCLUDES MY LIST OF CLAIM DEFINITIONS. INFRINGEMENT IN GENERAL 57. I WILL NOW INSTRUCT YOU AS TO THE RULES YOU MUST FOLLOW WHEN DECIDING WHETHER GRANT STREET HAS PROVEN THAT REALAUCTION’S USE OF THE REALFORECLOSE AND/OR REALTAXLIEN PRODUCT INFRINGES ANY OF THE ASSERTED CLAIMS OF THE ‘063 PATENT. 27 58. PERSONS OTHER THAN THE PATENT OWNER MAY NOT USE AN INVENTION COVERED BY ITS PATENT CLAIMS DURING THE LIFE OF THE PATENT WITHOUT THE OWNER’S PERMISSION. DOING SO IS CALLED INFRINGEMENT. 59. IN ORDER TO PROVE INFRINGEMENT, GRANT STREET MUST PROVE BY A PREPONDERANCE OF THE EVIDENCE THAT REALAUCTION’S REALFORECLOSE AND/OR REALTAXLIEN PRODUCTS MEET ALL OF THE REQUIREMENTS OF AT LEAST ONE ASSERTED PATENT CLAIM. YOU MUST COMPARE REALAUCTION’S PRODUCTS WITH EACH AND EVERY ONE OF THE REQUIREMENTS OF A PATENT CLAIM TO DETERMINE WHETHER ALL OF THE REQUIREMENTS OF THAT CLAIM ARE MET. IF A PRODUCT IS MISSING ONE OR MORE OF THE REQUIREMENTS RECITED IN A CLAIM, THAT PARTICULAR CLAIM IS NOT INFRINGED. 60. INFRINGEMENT IS DETERMINED ON A CLAIM-BY-CLAIM BASIS. THEREFORE, THERE MAY BE INFRINGEMENT AS TO ONE CLAIM BUT NO INFRINGEMENT AS TO ANOTHER. HERE, GRANT STREET ASSERTS THAT REALAUCTION INFRINGED AND CONTINUES TO INFRINGE THE ASSERTED CLAIMS OF THE ‘063 PATENT BY USING ITS 28 REALFORECLOSE PRODUCT IN THE UNITED STATES TO PERFORM EACH STEP OF THE METHODS CLAIMED IN THE ASSERTED CLAIMS. SPECIFICALLY, GRANT STREET ALLEGES THAT REALAUCTION’S REALFORECLOSE PRODUCT PRACTICES A METHOD THAT INFRINGES CLAIMS 1, 11, 15, 22, 23, 35 AND 39 OF THE ‘063 PATENT. 61. GRANT STREET ALSO ALLEGES THAT REALAUCTION INFRINGED AND CONTINUES TO INFRINGE THE ASSERTED CLAIMS OF THE ‘063 PATENT BY USING ITS REALTAXLIEN PRODUCT IN THE UNITED STATES TO PERFORM EACH STEP OF THE METHODS CLAIMED IN THE ASSERTED CLAIMS. SPECIFICALLY, GRANT STREET ASSERTS THAT REALAUCTION’S REALTAXLIEN PRODUCT PRACTICES A METHOD THAT INFRINGES CLAIMS 1, 22, 35 AND 39 OF THE ‘063 PATENT. 62. REALAUCTION DENIES THAT IT INFRINGES THE ‘063 PATENT BY USING ITS REALFORECLOSE PRODUCT. REALAUCTION DENIES THAT IT INFRINGES THE ‘063 PATENT BY USING ITS REALTAXLIEN PRODUCT SINCE MARCH 9, 2010. 63. YOU HAVE HEARD THAT VARIOUS PUBLIC AND PRIVATE WEBSITES, CERTAIN FLORIDA STATUTES, DOCUMENTS PRODUCED BY A PARTY, AND TESTIMONY CHARACTERIZE OR DESCRIBE WHAT IS 29 BEING SOLD AT A FORECLOSURE AUCTION. NO ONE OF THESE ITEMS IS CONCLUSIVE OF THE ISSUE. YOU THE JURY MUST CONSIDER ALL OF THE EVIDENCE THAT YOU HAVE HEARD TO MAKE YOUR DETERMINATION AS TO WHETHER REALAUCTION’S REAL FORECLOSURE AUCTIONS ARE AUCTIONS OF “FINANCIAL OR LEGAL INSTRUMENTS.” FOR THERE TO BE A FINDING OF INFRINGEMENT BY THE REALFORECLOSE PRODUCT, YOU MUST FIND BY A PREPONDERANCE OF THE EVIDENCE THAT “FINANCIAL OR LEGAL INSTRUMENTS” ARE BEING SOLD AT AUCTION. COMPRISING CLAIMS 64. CLAIM 1 OF THE ‘063 PATENT INCLUDES THE WORD “COMPRISING.” THE WORD COMPRISING MEANS “INCLUDES WHAT FOLLOWS BUT DOES NOT EXCLUDE OTHER ELEMENTS.” ACCORDINGLY, IF YOU FIND THAT EITHER OF THE ACCUSED PRODUCTS INCLUDES ALL OF THE LIMITATIONS IN THE ASSERTED CLAIMS THAT USE THE WORD “COMPRISING,” THE FACT THAT THE ACCUSED PRODUCT MIGHT ALSO INCLUDE ADDITIONAL COMPONENTS DOES NOT MEAN THAT THE ACCUSED PRODUCT DOES NOT LITERALLY INFRINGE THE ASSERTED CLAIMS. 30 INDEPENDENT AND DEPENDENT CLAIMS 65. PATENT CLAIMS MAY EXIST IN TWO FORMS, REFERRED TO AS INDEPENDENT CLAIMS OR DEPENDENT CLAIMS. 66. AN INDEPENDENT CLAIM DOES NOT REFER TO ANY OTHER CLAIM OF THE PATENT. IT IS NOT NECESSARY TO LOOK AT ANY OTHER CLAIM TO DETERMINE WHAT AN INDEPENDENT CLAIM COVERS. 67. A DEPENDENT CLAIM MAKES REFERENCE TO AT LEAST ONE OTHER CLAIM IN THE PATENT. A DEPENDENT CLAIM INCLUDES EACH OF THE LIMITATIONS OF THE OTHER CLAIM OR CLAIMS TO WHICH IT REFERS, AS WELL AS THE ADDITIONAL LIMITATIONS RECITED IN THE DEPENDENT CLAIM ITSELF. IN OTHER WORDS, A DEPENDENT CLAIM DOES NOT ITSELF RECITE ALL OF THE REQUIREMENTS OF THE CLAIM; RATHER, IT REFERS TO ANOTHER CLAIM FOR SOME OF ITS REQUIREMENTS. 68. THEREFORE, TO DETERMINE WHAT A DEPENDENT CLAIM COVERS, IT IS NECESSARY TO LOOK AT BOTH THE DEPENDENT CLAIM AND THE OTHER CLAIM OR CLAIMS TO WHICH IT REFERS. 69. FOR THE ‘063 PATENT, CLAIM 1 IS AN INDEPENDENT CLAIM. THE REMAINDER OF THE ASSERTED CLAIMS — CLAIMS 11, 15, 22, 23, 35 31 AND 39—ARE DEPENDENT ON CLAIM 1. THEREFORE, YOU MUST LOOK TO CLAIM 1 AS WELL AS THE ADDITIONAL REQUIREMENT STATED IN THE DEPENDENT CLAIMS TO DETERMINE INFRINGEMENT OF THE DEPENDENT CLAIMS. 70. FOR EXAMPLE, CLAIM 23 IS A DEPENDENT CLAIM. IT REFERS TO CLAIM 1. THUS, DEPENDENT CLAIM 23 REQUIRES EACH OF THE LIMITATIONS OF INDEPENDENT CLAIM 1, AS WELL AS THE ADDITIONAL LIMITATIONS IDENTIFIED IN DEPENDENT CLAIM 23 ITSELF. THAT IS, CLAIM 23 REQUIRES ALL OF THE ELEMENTS OF CLAIM 1 AS WELL AS THE STEP OF EXTENDING THE BIDDING PERIOD AFTER BIDDING BEGINS. 71. IF YOU FIND THAT CLAIM 1 IS NOT DIRECTLY INFRINGED, THEN YOU MUST ALSO FIND THE DEPENDENT CLAIMS ARE NOT INFRINGED. ON THE OTHER HAND, IF YOU FIND THAT CLAIM 1 HAS BEEN INFRINGED, YOU MUST DECIDE, SEPARATELY, WHETHER THE ADDITIONAL REQUIREMENTS OF EACH OF THE DEPENDENT CLAIMS HAVE ALSO BEEN INFRINGED. WILLFUL INFRINGEMENT 32 72. IF YOU FIND BY A PREPONDERANCE OF THE EVIDENCE THAT REALAUCTION INFRINGED ANY VALID CLAIM OF THE ‘063 PATENT, THEN YOU MUST FURTHER ASSIST THE COURT IN DETERMINING IF THIS INFRINGEMENT WAS WILLFUL. 73. TO PROVE WILLFUL INFRINGEMENT, GRANT STREET MUST PERSUADE YOU BY CLEAR AND CONVINCING EVIDENCE THAT REALAUCTION ACTED RECKLESSLY. THIS DEPENDS ON REALAUCTION’S STATE OF MIND. 74. FOR A FINDING BY YOU OF WILLFUL INFRINGEMENT, GRANT STREET MUST PERSUADE YOU BY CLEAR AND CONVINCING EVIDENCE THAT REALAUCTION ACTUALLY KNEW, OR IT WAS SO OBVIOUS THAT REALAUCTION SHOULD HAVE KNOWN, THAT ITS ACTIONS CONSTITUTED INFRINGEMENT OF A VALID, ISSUED PATENT. 75. IN DECIDING WHETHER REALAUCTION ACTED RECKLESSLY AS TO ANY CLAIM OF THE ‘063 PATENT THAT YOU FIND IS INFRINGED, YOU SHOULD CONSIDER ALL OF THE FACTS SURROUNDING THE ALLEGED INFRINGEMENT INCLUDING, BUT NOT LIMITED TO, THE FOLLOWING FACTORS, TO THE EXTENT YOU FIND THAT ANY OF THEM APPLY: 33 A. DID REALAUCTION ACT IN A MANNER CONSISTENT WITH THE STANDARDS OF COMMERCE FOR ITS INDUSTRY? B. DID REALAUCTION INTENTIONALLY COPY A PRODUCT OF GRANT STREET’S THAT IS COVERED BY THE ‘063 PATENT? C. WAS THERE A REASONABLE BASIS FOR REALAUCTION TO BELIEVE AT THE TIME OF INFRINGEMENT THAT THE ‘063 PATENT WAS NOT VALID, OR THAT REALAUCTION HAD A REASONABLE DEFENSE TO INFRINGEMENT? D. DID REALAUCTION MAKE A GOOD-FAITH EFFORT TO AVOID INFRINGING THE ‘063 PATENT, FOR EXAMPLE, WHETHER REALAUCTION ATTEMPTED TO DESIGN AROUND THE PATENT? AND E. DID REALAUCTION ATTEMPT TO CONCEAL INFRINGEMENT? 76. ANOTHER FACTOR THAT YOU MAY CONSIDER IS THE FACT THAT REALAUCTION DID NOT OBTAIN AN OPINION OF COUNSEL AS TO WHETHER IT WAS INFRINGING OR WHETHER THE ‘063 PATENT WAS INVALID. THE ABSENCE OF A LAWYER’S OPINION, BY ITSELF, IS INSUFFICENT TO SUPPORT A FINDING OF WILLFULLNESS, AND YOU MAY NOT ASSUME THAT MERELY BECAUSE A PARTY DID NOT OBTAIN 34 AN OPINION OF COUNSEL, THE OPINION WOULD HAVE BEEN UNFAVORABLE. 77. WHILE I HAVE JUST PROVIDED YOU WITH SOME FACTORS YOU MAY CONSIDER IN MAKING THE DETERMINATION AS TO WILLFULNESS, THE LAW REQUIRES YOU TO CONSIDER THE TOTALITY OF THE CIRCUMSTANCES WHICH MAY INCLUDE THE FACTORS I HAVE EXPLAINED AS WELL AS OTHERS. SUMMARY OF INVALIDITY DEFENSES 78. REALAUCTION CONTENDS THAT THE ASSERTED CLAIMS OF THE ‘063 PATENT ARE INVALID. A PATENT ISSUED BY THE UNITED STATES PATENT OFFICE IS PRESUMED TO BE VALID. IN ORDER TO REBUT THIS PRESUMPTION, REALAUCTION MUST ESTABLISH BY CLEAR AND CONVINCING EVIDENCE THAT GRANT STREET’S ‘063 PATENT OR ANY CLAIM IN THE PATENT IS NOT VALID. 79. REALAUCTION CONTENDS THAT ALL OF THE ASSERTED PATENT CLAIMS ARE INVALID BECAUSE THE CLAIMS ARE ANTICIPATED AND/OR OBVIOUS IN VIEW OF CERTAIN PRIOR ART REFERENCES. 35 REALAUCTION ALSO CONTENDS THAT THE WRITTEN DESCRIPTION OF THE PATENT WAS INADEQUATE. 80. YOU HEARD EVIDENCE THAT THE UNITED STATES PATENT AND TRADEMARK OFFICE TWICE CONDUCTED REEXAMINATIONS OF THE ‘063 PATENT. THE PATENT OFFICE FINISHED THE REEXAMINATIONS AND ISSUED CERTIFICATES OF REEXAMINATION FOR THE ‘063 PATENT. IT CONFIRMED THE PATENTABILITY OF THE ASSERTED CLAIMS. IN DETERMINING WHETHER REALAUCTION HAS MET ITS BURDEN OF PROVING INVALIDITY BY CLEAR AND CONVINCING EVIDENCE, YOU MAY CONSIDER THE FACT THAT THE PATENT OFFICE, ON REEXAMINATION, RENDERED THAT RESULT. 81. IN A REEXAMINATION, THE PATENT OFFICE IS PERMITTED TO REJECT PATENT CLAIMS ONLY BECAUSE OF PRIOR ART PATENTS AND PRIOR ART PRINTED PUBLICATIONS. CERTAIN PRIOR ART REFERENCES THAT HAVE BEEN PRESENTED TO YOU WERE MADE AVAILABLE TO THE PATENT OFFICE. IN A REEXAMINATION, THE PATENT OFFICE IS NOT PERMITTED TO CONSIDER INVALIDITY FOR PRIOR PUBLIC USE, OR FOR FAILURE TO SATISFY THE WRITTEN DESCRIPTION REQUIREMENT. THERE IS NO ALLEGATION IN THIS CASE 36 THAT ANY PARTY DID NOT FULFILL ITS DUTY OF CANDOR TO THE PATENT OFFICE AT ANY TIME REGARDING THE ‘063 PATENT. IN CONSIDERING WHETHER REALAUCTION HAS MET ITS BURDEN OF PROVING INVALIDITY BY CLEAR AND CONVINCING EVIDENCE, YOU MUST CONSIDER THAT THE PATENT OFFICE IS NOT PERMITTED DURING REEXAMINATIONS TO SET ASIDE A PATENT BECAUSE OF PRIOR PUBLIC USE OR BECAUSE OF THE WRITTEN DESCRIPTION REQUIREMENT. THE FACT THAT THE ‘063 PATENT HAS BEEN REEXAMINED, AND WAS NOT CANCELLED AS A RESULT OF THAT PROCESS, DOES NOT LIMIT THE RIGHT OF ANY PARTY TO ARGUE THAT THE ‘063 PATENT IS, OR IS NOT, VALID. IT IS THE JURY’S RESPONSIBILITY ALONE TO DETERMINE IF THE ‘063 PATENT HAS BEEN PROVEN BY REALAUCTION TO BE INVALID. 82. WHERE PATENTS, PUBLICATIONS, AND OTHER SUCH ITEMS OF INFORMATION ARE SUBMITTED TO THE PATENT OFFICE, THE DEGREE OF CONSIDERATION GIVEN TO SUCH INFORMATION WILL BE NORMALLY LIMITED BY THE DEGREE TO WHICH THE PARTY FILING THE INFORMATION CITATION HAS EXPLAINED THE CONTENT AND RELEVANCE OF THE INFORMATION. THE INITIALS OF THE EXAMINER 37 PLACED ADJACENT TO THE CITATIONS, DO NOT SIGNIFY THAT THE INFORMATION HAS BEEN CONSIDERED BY THE EXAMINER ANY FURTHER THAN TO THE EXTENT NOTED ABOVE. PRIOR ART DEFINED 83. I JUST TOLD YOU THAT REALAUCTION CONTENDS THE CLAIMS OF THE ‘063 PATENT ARE INVALID BASED ON WHAT IS KNOWN AS “PRIOR ART.” THE TERM “PRIOR ART” HAS A SPECIAL MEANING UNDER THE PATENT LAWS. SPECIFICALLY, PRIOR ART INCLUDES ANY OF THE FOLLOWING ITEMS RECEIVED INTO EVIDENCE DURING TRIAL: A. ANY PRODUCT OR METHOD THAT WAS PUBLICLY KNOWN OR USED BY OTHERS IN THE UNITED STATES BEFORE GRANT STREET’S DATE OF INVENTION; B. ANY PRODUCT OR METHOD THAT WAS IN PUBLIC USE IN THE UNITED STATES BEFORE THE EFFECTIVE FILING DATE OF GRANT STREET’S PATENT; C. PATENTS THAT ISSUED BEFORE GRANT STREET’S DATE OF INVENTION OR MORE THAN ONE YEAR BEFORE THE EFFECTIVE FILING DATE OF GRANT STREET’S PATENT; 38 D. PUBLICATIONS FROM BEFORE GRANT STREET’S DATE OF INVENTION OR MORE THAN ONE YEAR BEFORE THE EFFECTIVE FILING DATE OF GRANT STREET’S PATENT; AND E. ANY ISSUED PATENT OR PUBLISHED PATENT APPLICATION THAT WAS FILED BEFORE GRANT STREET’S DATE OF INVENTION. 84. IN THIS CASE, REALAUCTION CONTENDS THAT THE FOLLOWING ITEMS INTRODUCED DURING TRIAL ARE PRIOR ART RELEVANT TO THE ‘063 PATENT: (A) THE PUBLIC USE OF EBAY ON-LINE AUCTION SYSTEMS PRIOR TO NOVEMBER 17, 1996; (B) THE SALE AND PUBLIC USE OF THE PARITY SOFTWARE PRIOR TO NOVEMBER 17, 1996; AND (C) THE FISHER PATENT NUMBER 5,835,896. 85. THE DATE OF THE INVENTION AND THE DATE OF FILING OF THE PATENT APPLICATION MAY AFFECT WHAT IS PRIOR ART. IN THIS CASE, GRANT STREET CONTENDS THAT ITS INVENTION DATE IS NOVEMBER 22, 1996, WHICH IS ITS DATE OF CONCEPTION OF THE INVENTION, AND THAT ITS EFFECTIVE FILING DATE IS MAY 29, 1997, THE DATE GRANT STREET FILED ITS PROVISIONAL PATENT APPLICATION. REALAUCTION CONTENDS THAT THE INVENTION DATE AND THE EFFECTIVE FILING DATE ARE BOTH MAY 29, 1998, WHICH IS 39 THE DATE GRANT STREET FILED ITS FIRST NON-PROVISIONAL APPLICATION. ONCE YOU HAVE DECIDED THE INVENTION DATE AND THE EFFECTIVE FILING DATE, YOU CAN DETERMINE WHAT IS PRIOR ART IN THIS CASE. I WILL NOW INSTRUCT YOU ON BOTH OF THESE ISSUES. 86. THE DATE OF INVENTION IS EITHER (1) WHEN THE INVENTION WAS REDUCED TO PRACTICE OR (2) WHEN IT WAS CONCEIVED, PROVIDED THAT INVENTORS WERE DILIGENT IN REDUCING THE INVENTION TO PRACTICE. 87. A CLAIMED INVENTION IS “REDUCED TO PRACTICE” WHEN IT HAS BEEN CONSTRUCTED, USED, OR TESTED SUFFICIENTLY TO SHOW THAT IT WILL WORK FOR ITS INTENDED PURPOSE, OR WHEN THE INVENTOR FILES A PATENT APPLICATION. AN INVENTION MAY ALSO BE REDUCED TO PRACTICE EVEN IF THE INVENTOR HAS NOT MADE OR TESTED A PROTOTYPE OF THE INVENTION BY FILING A PATENT APPLICATION THAT FULLY DESCRIBES IT. 88. CONCEPTION IS THE MENTAL PART OF AN INVENTIVE ACT, THAT IS, THE FORMATION IN THE MIND OF THE INVENTOR OF A DEFINITE AND PERMANENT IDEA OF THE COMPLETE AND OPERATIVE 40 INVENTION AS IT IS THEREAFTER TO BE APPLIED IN PRACTICE, EVEN IF THE INVENTOR DID NOT KNOW AT THE TIME THAT THE INVENTION WOULD WORK. 89. CONCEPTION OF AN INVENTION IS COMPLETE WHEN THE IDEA IS SO CLEARLY DEFINED IN THE INVENTORS’ MINDS THAT, IF THE IDEA WERE COMMUNICATED TO A PERSON HAVING ORDINARY SKILL IN THE FIELD OF THE TECHNOLOGY, HE OR SHE WOULD BE ABLE TO REDUCE THE INVENTION TO PRACTICE WITHOUT UNDUE RESEARCH OR EXPERIMENTATION. THIS REQUIREMENT DOES NOT MEAN THAT THE INVENTOR HAS TO HAVE A PROTOTYPE BUILT, OR ACTUALLY EXPLAINED HER OR HIS INVENTION TO ANOTHER PERSON. 90. THERE MUST BE SOME EVIDENCE BEYOND THE INVENTOR’S OWN TESTIMONY THAT CONFIRMS THE CONCEPTION DATE. IN OTHER WORDS, THERE MUST BE CORROBORATIVE EVIDENCE OF THE DATE ON WHICH THE INVENTOR HAD THE COMPLETE IDEA. CONCEPTION MAY BE PROVEN WHEN THE INVENTION IS SHOWN IN ITS COMPLETE FORM BY DRAWINGS, DISCLOSURE TO ANOTHER PERSON, OR OTHER FORMS OF EVIDENCE PRESENTED AT TRIAL. DILIGENCE MEANS WORKING CONTINUOUSLY BUT NOT NECESSARILY EVERY DAY. 41 91. IF YOU FIND THAT GRANT STREET HAS PROVEN A CONCEPTION DATE AND THAT GRANT STREET WAS DILIGENT IN REDUCING THE INVENTION TO PRACTICE, THEN THE INVENTION DATE IS THE DATE OF CONCEPTION. IF YOU FIND THAT GRANT STREET HAS NOT PROVEN CONCEPTION AND REDUCTION TO PRACTICE, THEN THE INVENTION DATE IS THE SAME DATE AS THE EFFECTIVE FILING DATE. 92. GRANT STREET FILED A “PROVISIONAL” PATENT APPLICATION ON MAY 29, 1997. GRANT STREET CONTENDS THAT THE ASSERTED CLAIMS OF THE ‘063 PATENT ARE ENTITLED TO THE FILING DATE OF THE PROVISIONAL APPLICATION, WHILE REALAUCTION CONTENDS THAT THE ASSERTED CLAIMS ARE NOT. 93. GRANT STREET MAY RELY ON THE FILING DATE OF THE PROVISIONAL APPLICATION TO ESTABLISH THE EFFECTIVE FILING DATE IF THE APPLICATION TEACHES ONE OF ORDINARY SKILL IN THE ART TO MAKE AND USE THE CLAIMED INVENTIONS OF THE ‘063 PATENT, AND TO DO SO WITHOUT UNDUE EXPERIMENTATION. ADDITIONALLY, THE PROVISIONAL APPLICATION MUST DISCLOSE EACH AND EVERY ELEMENT OF THE ASSERTED CLAIMS OF THE ‘063 PATENT. 42 94. IF YOU DETERMINE THAT GRANT STREET HAS COME FORWARD WITH EVIDENCE THAT THE EFFECTIVE FILING DATE IS MAY 29, 1997, THEN REALAUCTION MUST PROVE, BY CLEAR AND CONVINCING EVIDENCE, THAT THIS IS NOT THE CORRECT EFFECTIVE FILING DATE. 95. IF YOU FIND THAT GRANT STREET IS ENTITLED TO AN EFFECTIVE FILING DATE THAT IS THE SAME DATE AS THE FILING DATE OF THE PROVISIONAL APPLICATION, THEN MAY 29, 1997 IS THE EFFECTIVE FILING DATE OF THE ‘063 PATENT FOR PURPOSES OF VALIDITY AND THE PRIOR ART. IF GRANT STREET IS NOT ENTITLED TO THE FILING DATE OF ITS PROVISIONAL APPLICATION, THEN MAY 29, 1998 IS THE EFFECTIVE FILING DATE OF THE ‘063 PATENT FOR PURPOSES OF VALIDITY AND THE PRIOR ART. INVALIDITY BY ANTICIPATION 96. A PERSON CANNOT OBTAIN A PATENT IF SOMEONE ELSE ALREADY HAS MADE THE SAME INVENTION. SIMPLY PUT, THE INVENTION MUST BE NEW. AN INVENTION THAT IS NOT NEW OR NOVEL IS SAID TO BE ANTICIPATED BY THE PRIOR ART. UNDER THE U.S. PATENT LAWS, AN INVENTION THAT IS ANTICIPATED IS NOT ENTITLED 43 TO PATENT PROTECTION. TO PROVE ANTICIPATION, REALAUCTION MUST PROVE BY CLEAR AND CONVINCING EVIDENCE THAT THE CLAIMED INVENTION IS NOT NEW. ANTICIPATION MUST BE DETERMINED ON A CLAIM-BY-CLAIM BASIS. 97. FOR A CLAIM TO BE INVALID BECAUSE IT IS NOT NEW, REALAUCTION MUST SHOW BY CLEAR AND CONVINCING EVIDENCE THAT ALL OF THE REQUIREMENTS OF THAT CLAIM WERE PRESENT IN A SINGLE ITEM OF PRIOR ART THAT WAS KNOWN OF, USED, OR DESCRIBED IN A SINGLE PREVIOUS PRINTED PUBLICATION OR PATENT. WE CALL THESE THINGS “ANTICIPATING PRIOR ART.” TO ANTICIPATE THE INVENTION, THE PRIOR ART DOES NOT HAVE TO USE THE SAME WORDS AS THE CLAIM, BUT EACH AND EVERY ELEMENT IN THE CLAIM MUST BE PRESENT IN A SINGLE ITEM OF PRIOR ART. YOU MAY NOT COMBINE TWO OR MORE ITEMS OF PRIOR ART TO PROVE ANTICIPATION. IN DETERMINING WHETHER EVERY ONE OF THE ELEMENTS OF THE CLAIMED INVENTION IS FOUND IN THE PRIOR PUBLICATION, PATENT OR DEVICE, YOU SHOULD TAKE INTO ACCOUNT WHETHER A PERSON HAVING ORDINARY SKILL IN THE ART IN THE 44 TECHNOLOGY OF THE INVENTION COULD, LOOKING ONLY AT THAT ONE REFERENCE, MAKE AND USE THE CLAIMED INVENTION. 98. IN THIS CASE, REALAUCTION CONTENDS THAT CLAIMS 1, 11 AND 39 OF THE ‘063 PATENT ARE ANTICIPATED BY THE EBAY PRIOR ART, AND CLAIMS 1, 11, 15, 22 ARE ANTICIPATED BY THE PARITY PRIOR ART. INVALIDITY BY OBVIOUSNESS 99. IN THIS CASE, REALAUCTION CONTENDS THAT ALL THE ASSERTED CLAIMS OF THE ‘063 PATENT ARE INVALID AS OBVIOUS. REALAUCTION CAN ESTABLISH THAT A PATENT CLAIM IS INVALID AS OBVIOUS IF IT SHOWS, BY CLEAR AND CONVINCING EVIDENCE, THAT THE CLAIMED INVENTION WOULD HAVE BEEN OBVIOUS TO A PERSON OF ORDINARY SKILL IN THE ART OF THE PATENT INVENTION AT THE TIME THE INVENTION WAS MADE. 100. OBVIOUSNESS MAY BE SHOWN BY CONSIDERING ONE OR MORE ITEMS OF PRIOR ART EITHER ALONE OR IN COMBINATION. IN THAT WAY, IT IS DIFFERENT FROM ANTICIPATION. KEEP IN MIND, HOWEVER, THAT THE EXISTENCE OF EACH AND EVERY ELEMENT OF THE CLAIMED INVENTION IN THE PRIOR ART DOES NOT NECESSARILY 45 PROVE OBVIOUSNESS. MOST, IF NOT ALL, INVENTIONS RELY ON BUILDING BLOCKS OF PRIOR ART. HOWEVER, COMBINING FAMILIAR ELEMENTS ACCORDING TO KNOWN METHODS IS LIKELY TO BE OBVIOUS WHEN IT DOES NO MORE THAN YIELD PREDICTABLE RESULTS. 101. THE FOLLOWING FACTORS MUST BE EVALUATED TO DETERMINE WHETHER REALAUCTION HAS ESTABLISHED THAT THE CLAIMED INVENTIONS ARE OBVIOUS: A. THE SCOPE AND CONTENT OF THE PRIOR ART RELIED UPON BY REALAUCTION; B. THE DIFFERENCE OR DIFFERENCES, IF ANY, BETWEEN EACH CLAIM OF THE PATENT THAT REALAUCTION CONTENDS IS OBVIOUS AND THE PRIOR ART; C. THE LEVEL OF ORDINARY SKILL IN THE ART AT THE TIME OF THE INVENTION; AND D. ADDITIONAL CONSIDERATIONS, IF ANY, THAT INDICATE THAT THE INVENTION WAS OBVIOUS OR NOT OBVIOUS. 102. EACH OF THESE FACTORS MUST BE EVALUATED, ALTHOUGH THEY MAY BE ANALYZED IN ANY ORDER, AND YOU MUST 46 PERFORM A SEPARATE ANALYSIS FOR EACH OF THE ASSERTED CLAIMS. 103. I WILL NOW EXPLAIN EACH OF THE FOUR OBVIOUSNESS FACTORS IN MORE DETAIL. SCOPE AND CONTENT OF PRIOR ART 104. IN CONSIDERING WHETHER THE CLAIMED INVENTION WAS OBVIOUS, YOU MUST FIRST DETERMINE THE SCOPE AND CONTENT OF THE PRIOR ART. THE SCOPE AND CONTENT OF PRIOR ART FOR DECIDING WHETHER THE INVENTION WAS OBVIOUS INCLUDES PRIOR ART IN THE SAME FIELD AS THE CLAIMED INVENTION, REGARDLESS OF THE PROBLEM ADDRESSED BY THE ITEM OR REFERENCE, AND PRIOR ART FROM DIFFERENT FIELDS THAT A PERSON OF ORDINARY SKILL IN THE ART USING COMMON SENSE MIGHT COMBINE IF FAMILIAR SO AS TO SOLVE THE PROBLEM, LIKE FITTING TOGETHER THE PIECES OF A PUZZLE. 105. THE PRIOR ART THAT YOU CONSIDERED PREVIOUSLY FOR ANTICIPATION PURPOSES IS ALSO PRIOR ART WHICH YOU MAY CONSIDER FOR OBVIOUSNESS PURPOSES, IN ADDITION TO THE FISHER PATENT. 47 Differences Between the Claimed Invention and the Prior Art 106. YOU SHOULD ANALYZE WHETHER THERE ARE ANY RELEVANT DIFFERENCES BETWEEN THE PRIOR ART AND THE CLAIMED INVENTION FROM THE VIEW OF A PERSON OF ORDINARY SKILL IN THE ART AT THE TIME OF THE INVENTION. YOUR ANALYSIS MUST DETERMINE THE IMPACT, IF ANY, OF SUCH DIFFERENCES ON THE OBVIOUSNESS OR NONOBVIOUSNESS OF THE INVENTION AS A WHOLE, AND NOT MERELY SOME PORTION OF IT. YOU MAY ALSO CONSIDER IN YOUR EVALUATION WHETHER THE UNITED STATES PATENT AND TRADEMARK OFFICE CONSIDERED THE PRIOR ART WHEN IT REVIEWED THE ‘063 PATENT. 107. IN DETERMINING WHETHER THE CLAIMED INVENTION WAS OBVIOUS, CONSIDER EACH CLAIM SEPARATELY. DO NOT USE HINDSIGHT. IN OTHER WORDS, CONSIDER ONLY WHAT WAS KNOWN AT THE TIME OF THE INVENTION. 108. IN ANALYZING THE RELEVANCE OF THE DIFFERENCES BETWEEN THE CLAIMED INVENTION AND THE PRIOR ART, YOU DO NOT NEED TO LOOK FOR PRECISE TEACHING IN THE PRIOR ART DIRECTED TO THE SUBJECT MATTER OF THE CLAIMED INVENTION. YOU MAY 48 TAKE INTO ACCOUNT THE INFERENCES AND CREATIVE STEPS THAT A PERSON OF ORDINARY SKILL IN THE ART WOULD HAVE EMPLOYED IN REVIEWING THE PRIOR ART AT THE TIME OF THE INVENTION. FOR EXAMPLE, IF THE CLAIMED INVENTION COMBINED ELEMENTS KNOWN IN THE PRIOR ART AND THE COMBINATION YIELDED RESULTS THAT WERE PREDICTABLE TO A PERSON OF ORDINARY SKILL IN THE ART AT THE TIME OF THE INVENTION, THEN THIS EVIDENCE WOULD MAKE IT MORE LIKELY THAT THE CLAIM WAS OBVIOUS. ON THE OTHER HAND, IF THE COMBINATION OF KNOWN ELEMENTS YIELDED UNEXPECTED OR UNPREDICTABLE RESULTS, OR IF THE PRIOR ART TEACHES AWAY FROM COMBINING THE KNOWN ELEMENTS, THEN THIS EVIDENCE WOULD MAKE IT MORE LIKELY THAT THE CLAIM THAT SUCCESSFULLY COMBINED THOSE ELEMENTS WAS NOT OBVIOUS. 109. IMPORTANTLY, A CLAIM IS NOT PROVED OBVIOUS MERELY BY DEMONSTRATING THAT EACH OF THE ELEMENTS WAS INDEPENDENTLY KNOWN IN THE PRIOR ART. MOST, IF NOT ALL, INVENTIONS RELY ON BUILDING BLOCKS LONG SINCE UNCOVERED, AND CLAIMED DISCOVERIES WILL LIKELY BE COMBINATIONS OF WHAT IS ALREADY KNOWN. IN OTHER WORDS, A CLAIM IN A PATENT IS NOT 49 OBVIOUS AND INVALID SIMPLY BECAUSE THE CLAIM COMBINES ELEMENTS THAT CAN ALL BE FOUND AMONG THE PRIOR ART REFERENCES. 110. YOU SHOULD CONSIDER WHETHER A REASON EXISTED AT THE TIME OF THE INVENTION THAT WOULD HAVE PROMPTED A PERSON OF ORDINARY SKILL IN THE ART IN THE RELEVANT FIELD TO COMBINE THE KNOWN ELEMENTS IN THE WAY THE CLAIMED INVENTION DOES. THE REASON COULD COME FROM THE PRIOR ART, THE BACKGROUND KNOWLEDGE OF ONE OF ORDINARY SKILL IN THE ART, THE NATURE OF THE PROBLEM TO BE SOLVED, MARKET DEMAND, OR COMMON SENSE, WITHOUT ANY SPECIFIC HINT OR SUGGESTION IN A PARTICULAR REFERENCE. ANY NEED OR PROBLEM KNOWN IN THE FIELD OF ENDEAVOR AT THE TIME OF INVENTION AND ADDRESSED BY THE PATENT CAN PROVIDE A REASON FOR COMBINING THE ELEMENTS OF THE CLAIM IN THE MANNER CLAIMED. 111. YOU MUST UNDERTAKE THIS ANALYSIS SEPARATELY FOR EACH CLAIM THAT REALAUCTION CONTENDS IS OBVIOUS. 50 Level of Ordinary Skill 112. AS I ALREADY DISCUSSED, THE DETERMINATION OF WHETHER A CLAIMED INVENTION IS OBVIOUS IS BASED ON THE PERSPECTIVE OF A PERSON OF ORDINARY SKILL IN THE FIELD OF THE ART. THE PERSON OF ORDINARY SKILL IS PRESUMED TO KNOW ALL PRIOR ART THAT YOU HAVE DETERMINED TO BE REASONABLY RELEVANT. THE PERSON OF ORDINARY SKILL IS ALSO A PERSON OF ORDINARY CREATIVITY THAT CAN USE COMMON SENSE TO SOLVE PROBLEMS. 113. THE PARTIES DISAGREE AS TO THE LEVEL OF ORDINARY SKILL IN THE ART. GRANT STREET CONTENDS THAT “A PERSON OF ORDINARY SKILL IN THE ART BETWEEN NOVEMBER, 1996 AND MAY, 1997 WOULD HAVE A BACHELOR’S DEGREE IN BUSINESS, ECONOMICS OR FINANCE AND AT LEAST THREE YEARS OF EXPERIENCE WORKING WITH THE AUCTIONS OF FINANCIAL AND LEGAL INSTRUMENTS. IN ADDITION, THAT PERSON EITHER WOULD HAVE APPROXIMATELY SIX MONTHS TO ONE YEAR OF EXPERIENCE WITH DEVELOPMENT AND IMPLEMENTATION OF WEB-BASED E-COMMERCE SITES (A RELATIVELY NEW FIELD AT THE TIME) OR ACCESS TO SUCH A PERSON.” IN 51 CONTRAST, REALAUCTION ARGUES THAT THE “PERSON OF ORDINARY SKILL IN THE ART IN 1996 WOULD HAVE HAD A BACHELOR OF SCIENCE IN ELECTRICAL ENGINEERING, COMPUTER SCIENCE, OR COMPUTER ENGINEERING, AND HAVE EXPERIENCE IN DEVELOPING ELECTRONIC COMMERCE SYSTEMS, INCLUDING NETWORKED AUCTION SYSTEMS.” 114. WHEN DETERMINING THE LEVEL OF ORDINARY SKILL IN THE ART, YOU SHOULD CONSIDER ALL THE EVIDENCE SUBMITTED BY THE PARTIES, INCLUDING EVIDENCE OF:  THE LEVEL OF EDUCATION AND EXPERIENCE OF PERSONS ACTIVELY WORKING IN THE FIELD AT THE TIME OF THE INVENTION, INCLUDING THE INVENTOR;  THE TYPES OF PROBLEMS ENCOUNTERED IN THE ART AT THE TIME OF THE INVENTION AND PRIOR ART SOLUTIONS TO THOSE PROBLEMS; AND  THE SOPHISTICATION OF THE TECHNOLOGY IN THE ART AT THE TIME OF THE INVENTION, INCLUDING THE RAPIDITY WITH WHICH INNOVATIONS WERE MADE IN THE ART AT THE TIME OF THE INVENTION. 52 Factors Indicating Nonobviousness 115. IN DECIDING THE ISSUE OF OBVIOUSNESS, YOU MUST ALSO CONSIDER CERTAIN FACTORS, WHICH, IF ESTABLISHED, MAY INDICATE THAT THE INVENTION WOULD NOT HAVE BEEN OBVIOUS. NO SUCH FACTOR ALONE IS DISPOSITIVE, AND YOU MUST CONSIDER THE OBVIOUSNESS OR NONOBVIOUSNESS OF THE INVENTION AS A WHOLE. A. WERE PRODUCTS COVERED BY THE CLAIM COMMERCIALLY SUCCESSFUL DUE TO THE MERITS OF THE CLAIMED INVENTION RATHER THAN DUE TO ADVERTISING, PROMOTION, SALESMANSHIP, OR FEATURES OF THE PRODUCT OTHER THAN THOSE FOUND IN THE CLAIM? B. WAS THERE LONG FELT NEED WHICH WAS SATISFIED BY THE CLAIMED INVENTION? C. DID OTHERS TRY, BUT FAIL, TO SOLVE THE PROBLEM SOLVED BY THE CLAIMED INVENTION? D. DID OTHERS COPY THE CLAIMED INVENTION? E. DID THE CLAIMED INVENTION ACHIEVE UNEXPECTEDLY SUPERIOR RESULTS? 53 F. DID OTHERS HAVING ORDINARY SKILL IN THE ART OF THE PATENT PRAISE THE CLAIMED INVENTION OR EXPRESS SURPRISE AT THE MAKING OF THE CLAIMED INVENTION? G. DID OTHERS SEEK OR ACCEPT LICENSES UNDER THE ‘063 PATENT BECAUSE OF THE MERITS OF THE CLAIMED INVENTION? 116. ANSWERING ANY, OR ALL, OF THESE QUESTIONS “YES” MAY SUGGEST THAT THE CLAIM WAS NOT OBVIOUS. 117. NO FACTOR ALONE IS DISPOSITIVE, AND YOU MUST CONSIDER THE OBVIOUSNESS OR NONOBVIOUSNESS OF THE INVENTION AS A WHOLE. 118. EVIDENCE OF THESE CONSIDERATIONS IS RELEVANT TO OBVIOUSNESS ONLY IF THEY ARE CLOSELY TIED TO THE FEATURES OF THE PRODUCT THAT HAVE BEEN PATENTED. IF THEY ARE NOT, THEY MAY NOT BE CONSIDERED. COMMERCIAL SUCCESS, PRAISE, COPYING, ET CETERA OF A PRODUCT MAY BE ATTRIBUTED TO THE PATENTED INVENTION ONLY WHERE SUCH PRODUCT EMBODIES THE CLAIMED FEATURES. WITHOUT SUCH A CONNECTION BETWEEN THE REASONS FOR THE COMMERCIAL SUCCESS, PRAISE, ET CETERA, AND THE INVENTION AS IT WAS CLAIMED, THE EVIDENCE IS NOT RELEVANT 54 TO THE OBVIOUSNESS ANALYSIS. IT IS NOT NECESSARY THAT THE PATENTED INVENTION BE SOLELY RESPONSIBLE FOR THE COMMERCIAL SUCCESS, PRAISE, ETC. FOR THE EVIDENCE TO BE CONSIDERED. INVALIDITY BY INADEQUATE WRITTEN DESCRIPTION 119. A PATENT MUST CONTAIN A WRITTEN DESCRIPTION OF THE FULL SCOPE OF THE INVENTION CLAIMED IN THE PATENT. THE WRITTEN DESCRIPTION REQUIREMENT HELPS ENSURE THAT THE NAMED INVENTORS ACTUALLY INVENTED THE CLAIMED SUBJECT MATTER. 120. IT IS NOT IMPROPER FOR AN APPLICANT TO AMEND ITS PATENT CLAIMS TO COVER A COMPETITOR’S PRODUCT AFTER THE APPLICATION IS FILED AS LONG AS THE WRITTEN DESCRIPTION REQUIREMENT IS MET. 121. TO SATISFY THE WRITTEN DESCRIPTION REQUIREMENT, THE PATENT MUST DESCRIBE EACH AND EVERY LIMITATION OF A PATENT CLAIM, IN SUFFICIENT DETAIL, ALTHOUGH THE EXACT WORDS FOUND IN THE CLAIM NEED NOT BE USED. THE WRITTEN DESCRIPTION REQUIREMENT IS SATISFIED IF A PERSON OF ORDINARY SKILL IN THE 55 FIELD READING THE PATENT AS IT WAS ORIGINALLY FILED WOULD RECOGNIZE THAT IT DESCRIBES THE FULL SCOPE OF THE INVENTION CLAIMED IN THE ISSUED CLAIMS. IT IS UNNECESSARY TO SPELL OUT EVERY DETAIL OF THE INVENTION IN THE PATENT’S SPECIFICATION, BUT ENOUGH MUST BE INCLUDED TO CONVINCE A PERSON OF SKILL IN THE ART THAT THE INVENTOR POSSESSED THE FULL SCOPE OF THE INVENTION. 122. REALAUCTION CONTENDS THAT CLAIMS 1 THROUGH 42 OF GRANT STREET’S PATENT ARE INVALID BECAUSE THE SPECIFICATION OF THE PATENT DOES NOT CONTAIN AN ADEQUATE WRITTEN DESCRIPTION OF THE CLAIMED INVENTION. TO SUCCEED, REALAUCTION MUST SHOW BY CLEAR AND CONVINCING EVIDENCE THAT THE SPECIFICATION FAILS TO MEET THE REQUIREMENTS FOR WRITTEN DESCRIPTION OF THE INVENTION. DAMAGES 123. IF YOU FIND THAT REALAUCTION’S USE OF ITS REALFORECLOSE AND/OR REALTAXLIEN PRODUCTS INFRINGES AT LEAST ONE OF THE ASSERTED CLAIMS OF THE ‘063 PATENT, AND THAT 56 SUCH CLAIM OR CLAIMS ARE NOT INVALID, THEN YOU MUST DETERMINE THE AMOUNT OF DAMAGES TO BE AWARDED TO GRANT STREET FOR THE INFRINGEMENT. 124. IF YOU NEED TO DETERMINE DAMAGES, THE AMOUNT OF THOSE DAMAGES MUST BE ADEQUATE TO COMPENSATE GRANT STREET FOR THE INFRINGEMENT. YOUR DAMAGE AWARD SHOULD PUT GRANT STREET IN APPROXIMATELY THE SAME FINANCIAL POSITION IT WOULD HAVE BEEN HAD THERE BEEN NO INFRINGEMENT. BUT, IN NO EVENT MAY THE DAMAGE AWARD BE LESS THAN A REASONABLE ROYALTY. 125. GRANT STREET HAS THE BURDEN OF PROVING ITS DAMAGES CLAIM BY A PREPONDERANCE OF THE EVIDENCE. GRANT STREET IS NOT REQUIRED TO PROVE DAMAGES WITH ABSOLUTE CERTAINTY, BUT IT MUST MEET THIS STANDARD OF PREPONDERANCE OF THE EVIDENCE. GRANT STREET IS NOT ENTITLED TO DAMAGES THAT ARE REMOTE OR SPECULATIVE, OR BASED ON SYMPATHY OR GUESSWORK. IN DETERMINING THE AMOUNT OF DAMAGES, THERE SHOULD BE NO ATTEMPT BY YOU TO PUNISH OR REWARD ANY PARTY AND YOUR VERDICT SHOULD NOT BE INFLUENCED BY SYMPATHY OR 57 PREJUDICE FOR OR AGAINST ANY PARTY. THE MERE FACT THAT THE PLAINTIFF SUSTAINED HARM DOES NOT PROVE OR GIVE RISE TO ANY INFERENCE THAT THE DEFENDANTS ARE RESPONSIBLE FOR THOSE DAMAGES. 126. THE FACT THAT I AM INSTRUCTING YOU ON DAMAGES SHOULD NOT BE UNDERSTOOD AS SUGGESTING ANY VIEW OF THE COURT AS TO WHICH PARTY IS ENTITLED TO PREVAIL IN THIS CASE, OR THAT ANY AMOUNT OF DAMAGES, OR ANY DAMAGES AT ALL, SHOULD BE AWARDED. THESE INSTRUCTIONS ARE GIVEN FOR YOUR GUIDANCE IN THE EVENT YOU FIND THE EVIDENCE IN FAVOR OF GRANT STREET. I WILL NOW EXPLAIN TO YOU HOW YOU SHOULD DETERMINE AN APPROPRIATE DAMAGES AWARD. TWO TYPES OF DAMAGES: LOST PROFITS AND REASONABLE ROYALTY 127. THERE ARE TWO TYPES OF DAMAGES FOR PATENT INFRINGEMENT. THE FIRST TYPE OF PATENT DAMAGES IS LOST PROFITS. BRIEFLY, LOST PROFITS DAMAGES COMPENSATE THE PATENT OWNER FOR ADDITIONAL PROFITS THAT IT WOULD HAVE MADE IF THE ACCUSED INFRINGER HAD NOT INFRINGED. THE SECOND 58 TYPE OF PATENT DAMAGES IS CALLED REASONABLE ROYALTY. A REASONABLE ROYALTY IS DEFINED AS THE MONEY AMOUNT GRANT STREET AND REALAUCTION WOULD HAVE AGREED UPON AS A FEE FOR USE OF THE INVENTION AT THE TIME JUST PRIOR TO WHEN INFRINGEMENT BEGAN. 128. THE MINIMUM AMOUNT OF DAMAGES THAT GRANT STREET MAY RECOVER FOR INFRINGEMENT OF A VALID PATENT IS A REASONABLE ROYALTY. GRANT STREET MUST PROVE IT IS ENTITLED TO LOST PROFITS. 129. TO RECOVER LOST PROFITS (AS OPPOSED TO A REASONABLE ROYALTY), GRANT STREET MUST SHOW A CAUSAL RELATIONSHIP BETWEEN THE INFRINGEMENT AND GRANT STREET’S LOSS OF PROFIT. IN OTHER WORDS, GRANT STREET MUST PROVE THAT, BUT FOR THE INFRINGEMENT, THERE IS A REASONABLE PROBABILITY THAT GRANT STREET WOULD HAVE EARNED HIGHER PROFITS. 130. TO SHOW THIS, GRANT STREET MUST PROVE THAT IF THERE HAD BEEN NO INFRINGEMENT IT WOULD HAVE MADE SOME OR 59 ALL OF THE SALES REALAUCTION MADE OF THE INFRINGING PRODUCT. 131. THUS, PART OF YOUR JOB IS TO DETERMINE WHAT THE CUSTOMERS WHO PURCHASED REALAUCTION’S REALFORECLOSE AND/OR REALTAXLIEN PRODUCTS WOULD HAVE DONE IF REALAUCTION HAD NOT SOLD THOSE PRODUCTS. 132. GRANT STREET MUST PROVE THE AMOUNT OF LOST PROFITS BY A PREPONDERANCE OF THE EVIDENCE. IF IT IS MORE LIKELY THAN NOT THAT GRANT STREET WOULD HAVE MADE SOME OR ALL OF THE INFRINGING SALES MADE BY REALAUCTION, AND WHAT AMOUNT GRANT STREET WOULD HAVE NETTED FROM THE SALES THAT WENT TO REALAUCTION INSTEAD IS FOUND BY YOU BY A PREPONDERANCE OF THE EVIDENCE, THEN REALAUCTION IS LIABLE FOR THE LOST PROFITS ON THOSE INFRINGING SALES. 133. THE PROFITS I HAVE BEEN REFERRING TO ARE THE PROFITS ALLEGEDLY LOST BY GRANT STREET, NOT THE PROFITS, IF ANY, MADE BY REALAUCTION. 60 LOST PROFITS: MARKET SHARE 134. IF A PATENT HOLDER ESTABLISHES IT WOULD HAVE MADE SOME, BUT NOT ALL, OF AN ALLEGED INFRINGER’S SALES BUT FOR THE INFRINGEMENT, THE AMOUNT OF SALES THAT THE PATENT HOLDER LOST MAY BE SHOWN BY PROVING THE PATENT HOLDER’S SHARE OF THE RELEVANT MARKET, EXCLUDING INFRINGING PRODUCTS. A PATENT HOLDER MAY BE AWARDED A SHARE OF PROFITS EQUAL TO ITS MARKET SHARE EVEN IF THERE WERE NONINFRINGING SUBSTITUTES AVAILABLE. IN DETERMINING A PATENT HOLDER’S MARKET SHARE, THE MARKET MUST BE ESTABLISHED FIRST, WHICH REQUIRES DETERMINING WHICH PRODUCTS ARE IN THAT MARKET. PRODUCTS ARE CONSIDERED IN THE SAME MARKET IF THEY ARE CONSIDERED “SUFFICIENTLY SIMILAR” TO COMPETE AGAINST EACH OTHER. TWO PRODUCTS ARE SUFFICIENTLY SIMILAR IF ONE DOES NOT HAVE A SIGNIFICANTLY HIGHER PRICE THAN, OR POSSESS CHARACTERISTICS SIGNIFICANTLY DIFFERENT FROM, THE OTHER. 61 LOST PROFITS: PANDUIT FACTORS 135. GRANT STREET IS ENTITLED TO LOST PROFITS IF YOU FIND THAT GRANT STREET HAS PROVEN EACH OF THE FOLLOWING FACTORS, CALLED THE PANDUIT FACTORS, BY A PREPONDERANCE OF THE EVIDENCE: A. DEMAND FOR THE PATENTED PRODUCT OR SYSTEM OR METHOD; B. THERE WERE NO ACCEPTABLE NON-INFRINGING SUBSTITUTES; C. GRANT STREET HAD THE MANUFACTURING AND MARKETING CAPACITY TO MAKE THE INFRINGING SALES ACTUALLY MADE BY REALAUCTION – IN OTHER WORDS, THAT GRANT STREET WAS CAPABLE OF SATISFYING THE DEMAND; AND D. THE AMOUNT OF PROFIT THAT GRANT STREET WOULD HAVE MADE BUT FOR REALAUCTION’S SALES. 136. I WILL NOW EXPLAIN EACH OF THESE FACTORS. Lost Profits Panduit Factors: Demand 137. FIRST, YOU SHOULD CONSIDER DEMAND FOR THE PATENTED PRODUCT. DEMAND FOR THE PATENTED PRODUCT CAN BE 62 PROVEN BY SALES OF GRANT STREET’S PATENTED PRODUCT. DEMAND FOR THE PATENTED PRODUCT ALSO CAN BE PROVEN BY SIGNIFICANT SALES OF REALAUCTION’S PRODUCT CONTAINING THE PATENTED FEATURES. Lost Profits Panduit Factors: Acceptable Non-Infringing Alternatives 138. THE EXISTENCE OF A COMPETING METHOD OR PRODUCT DOES NOT MAKE THAT METHOD OR PRODUCT AN ACCEPTABLE SUBSTITUTE. IN ORDER TO BE AN ACCEPTABLE SUBSTITUTE, THE PRODUCT MUST HAVE ONE OR MORE OF THE ADVANTAGES OF THE PATENTED INVENTION THAT WERE IMPORTANT TO CUSTOMERS. IF PURCHASERS OF AN ALLEGED INFRINGER’S PRODUCT WERE MOTIVATED TO BUY THAT PRODUCT BECAUSE OF THE PATENT HOLDER’S PATENTED METHOD OR PRODUCT, THEN SOME OTHER, ALTERNATIVE METHOD OR PRODUCT IS NOT AN ACCEPTABLE SUBSTITUTE, EVEN IF IT OTHERWISE COMPETED WITH A PATENT HOLDER’S AND AN ALLEGED INFRINGER’S PRODUCTS. IF, HOWEVER, THE REALITIES OF THE MARKETPLACE ARE THAT COMPETITORS OTHER THAN GRANT STREET WOULD LIKELY HAVE CAPTURED SOME 63 OR ALL OF THE SALES MADE BY REALAUCTION, EVEN DESPITE A DIFFERENCE IN THE PRODUCTS, THEN GRANT STREET IS NOT ENTITLED TO LOST PROFITS ON THOSE SALES. 139. IN ORDER TO ASSESS WHETHER THERE IS AN ABSENCE OF ACCEPTABLE NON-INFRINGING SUBSTITUTES, YOU MUST CONSIDER WHETHER NON-INFRINGING SUBSTITUTES EXISTED THAT WERE ACCEPTABLE TO THE SPECIFIC PURCHASERS OF THE INFRINGING PRODUCTS, NOT PURCHASERS GENERALLY. 140. AN ACCEPTABLE NONINFRINGING SUBSTITUTE MUST BE A PRODUCT THAT DOES NOT INFRINGE THE PATENT. A PRODUCT DOES NOT INFRINGE A PATENT WHEN EITHER (A) IT IS SOLD BASED ON A LICENSE UNDER THAT PATENT OR (B) IT DOES NOT INCLUDE ALL THE FEATURES REQUIRED BY THE PATENT. GRANT STREET CONTENDS THAT THE PRODUCTS OFFERED BY BID4ASSETS, D&T VENTURES/VISUALGOV, PACIFIC BLUE, TAXLIENBIDS.COM, WEST FLORIDA BUSINESS SYSTEMS AND SRI INFRINGE AT LEAST ONE CLAIM OF THE ‘063 PATENT AND THUS ARE NOT NONINFRINGING SUBSTITUTES. YOU MUST DETERMINE WHETHER GRANT STREET HAS 64 PROVEN BY A PREPONDERANCE OF THE EVIDENCE THAT ANY OF THOSE PRODUCTS ARE NON-INFRINGING SUBSTITUTES. Lost Profits Panduit Factors: Capacity 141. GRANT STREET IS ONLY ENTITLED TO LOST PROFITS FOR SALES IT COULD HAVE ACTUALLY MADE. YOU SHOULD CONSIDER WHETHER GRANT STREET HAS PROVEN THAT IT HAD THE CAPABILITY OF PROVIDING THE SERVICES AND THE MARKETING CAPABILITY TO MAKE THE SALES THAT IT SAYS IT WOULD HAVE MADE BUT FOR REALAUCTION. GRANT STREET MUST PROVE THAT IT WAS MORE PROBABLE THAN NOT THAT IT COULD HAVE MADE THE ADDITIONAL SALES IT SAYS IT COULD HAVE MADE BUT FOR THE INFRINGEMENT. Lost Profits Panduit Factors: Incremental Profit 142. GRANT STREET MAY CALCULATE ITS LOST PROFITS ON LOST SALES BY COMPUTING THE REVENUE IT WOULD HAVE MADE ON THOSE SALES AND SUBTRACTING FROM THAT FIGURE THE AMOUNT OF ADDITIONAL COSTS OR EXPENSES THAT IT WOULD HAVE INCURRED IN MAKING THOSE LOST SALES, INCLUDING BUT NOT LIMITED TO SALES COSTS. CERTAIN FIXED COSTS SUCH AS TAXES, INSURANCE, RENT AND ADMINISTRATIVE OVERHEAD MAY NOT VARY 65 WITH INCREASES IN PRODUCTION OR SCALE. THESE ARE CALLED FIXED COSTS. 143. ANY COSTS WHICH DO NOT VARY WITH INCREASED PRODUCTION SHOULD NOT BE SUBTRACTED FROM THE LOST REVENUE WHEN DETERMINING DAMAGES. THUS, IN DETERMINING GRANT STREET’S LOST PROFITS, YOU ARE NOT TO SUBTRACT FROM ITS LOST REVENUE THE AMOUNT OF ANY FIXED COSTS. 144. THE AMOUNT OF LOST PROFITS CANNOT BE SPECULATIVE BUT IT DOES NOT NEED TO BE PROVED WITH UNERRING CERTAINTY. REASONABLE ROYALTY - ENTITLEMENT 145. IF YOU FIND THAT GRANT STREET HAS ESTABLISHED INFRINGEMENT OF A VALID PATENT, GRANT STREET IS ENTITLED TO AT LEAST A REASONABLE ROYALTY TO COMPENSATE IT FOR THAT INFRINGEMENT. IF YOU FIND THAT GRANT STREET HAS NOT PROVED ITS CLAIM FOR LOST PROFITS, THEN YOU MUST AWARD GRANT STREET A REASONABLE ROYALTY FOR ALL INFRINGING SALES FOR WHICH YOU HAVE NOT AWARDED LOST PROFITS DAMAGES. 66 REASONABLE ROYALTY - DEFINITION 146. A ROYALTY IS A PAYMENT MADE TO A PATENT HOLDER IN EXCHANGE FOR THE RIGHT TO USE THE CLAIMED INVENTION. A REASONABLE ROYALTY IS THE AMOUNT OF ROYALTY PAYMENT THAT THE PATENT HOLDER AND THE INFRINGER WOULD HAVE AGREED TO IN A HYPOTHETICAL NEGOTIATION TAKING PLACE AT A TIME PRIOR TO WHEN THE INFRINGEMENT FIRST BEGAN. 147. IN CONSIDERING THIS HYPOTHETICAL NEGOTIATION, YOU SHOULD FOCUS ON WHAT THE EXPECTATIONS OF THE PATENT HOLDER AND THE INFRINGER WOULD HAVE BEEN HAD THEY ENTERED INTO AN AGREEMENT AT THAT TIME, AND HAD THEY ACTED REASONABLY IN THEIR NEGOTIATIONS. IN DETERMINING THIS, YOU MUST ASSUME THAT BOTH PARTIES BELIEVED THE PATENT WAS VALID AND INFRINGED AND THE PATENT HOLDER AND INFRINGER WERE WILLING TO ENTER INTO AN AGREEMENT. 148. THE REASONABLE ROYALTY YOU DETERMINE MUST BE A ROYALTY THAT WOULD HAVE RESULTED FROM THE HYPOTHETICAL NEGOTIATION, AND NOT SIMPLY A ROYALTY EITHER PARTY WOULD HAVE PREFERRED. 67 Reasonable Royalty: Time of the Hypothetical Negotiation 149. IN THIS CASE, THE PARTIES AGREE THE HYPOTHETICAL NEGOTIATION WOULD HAVE OCCURRED JUST PRIOR TO APRIL 21, 2009. Reasonable Royalty: Relevant Factors 150. IN DETERMINING THE REASONABLE ROYALTY, YOU SHOULD CONSIDER ALL THE FACTS KNOWN AND AVAILABLE TO THE PARTIES AT THE TIME THE INFRINGEMENT BEGAN. SOME OF THE KINDS OF FACTORS THAT YOU MAY CONSIDER IN MAKING YOUR DETERMINATION ARE: (A) ANY ROYALTIES RECEIVED BY GRANT STREET FOR THE LICENSING OF THE ‘063 PATENT, PROVING OR TENDING TO PROVE AN ESTABLISHED ROYALTY. (B) ANY RATES PAID BY REALAUCTION FOR THE USE OF OTHER PATENTS COMPARABLE TO THE ‘063 PATENT. (C) THE NATURE AND SCOPE OF THE LICENSE, AS EXCLUSIVE OR NON-EXCLUSIVE; OR AS RESTRICTED OR NON-RESTRICTED IN TERMS OF TERRITORY OR WITH RESPECT TO WHOM THE PATENTED METHOD OR MANUFACTURED PRODUCT MAY BE SOLD. 68 (D) GRANT STREET’S ESTABLISHED POLICY OR MARKETING PROGRAM TO MAINTAIN THE RIGHT TO EXCLUDE OTHERS FROM USING THE PATENTED INVENTIONS BY NOT LICENSING OTHERS TO USE THE INVENTIONS, OR BY GRANTING LICENSES UNDER SPECIAL CONDITIONS DESIGNED TO PRESERVE THAT EXCLUSIVITY. (E) ANY COMMERCIAL RELATIONSHIP BETWEEN GRANT STREET AND REALAUCTION, SUCH AS WHETHER OR NOT THEY ARE COMPETITORS IN THE SAME TERRITORY IN THE SAME LINE OF BUSINESS. (F) THE EFFECT OF SELLING THE PATENTED PRODUCTS IN PROMOTING SALES OF OTHER PRODUCTS OR INVENTIONS OF REALAUCTION; THE EXISTING VALUE OF THE INVENTIONS TO GRANT STREET AS A GENERATOR OF SALES OF ITS NON-PATENTED GOODS OR SERVICES; AND THE EXTENT OF SUCH DERIVATIVE OR CONVOYED SALES. (G) THE DURATION OF THE PATENTS AND THE TERM OF THE LICENSE. 69 (H) THE ESTABLISHED PROFITABILITY OF PRODUCTS MADE UNDER THE ‘063 PATENT; THEIR COMMERCIAL SUCCESS; AND THEIR CURRENT POPULARITY. (I) THE UTILITY AND ADVANTAGES OF THE PATENTED INVENTIONS OVER THE OLD MODES OR DEVICES, IF ANY, THAT HAD BEEN USED FOR WORKING OUT SIMILAR RESULTS. (J) THE NATURE OF THE PATENTED INVENTIONS; THE CHARACTER OF THE COMMERCIAL EMBODIMENT OF THEM AS OWNED AND PRODUCED BY GRANT STREET; AND THE BENEFITS TO THOSE WHO HAVE USED THE INVENTIONS. (K) THE EXTENT TO WHICH REALAUCTION HAS MADE USE OF THE INVENTIONS; AND ANY EVIDENCE THAT SHOWS THE VALUE OF THAT USE. (L) THE PORTION OF THE PROFIT OR OF THE SELLING PRICE THAT MAY BE CUSTOMARY IN THE PARTICULAR BUSINESS OR IN COMPARABLE BUSINESSES TO ALLOW FOR THE USE OF THE INVENTIONS OR ANALOGOUS INVENTIONS. (M) THE PORTION OF THE PROFIT THAT ARISES FROM THE PATENTED INVENTIONS THEMSELVES AS OPPOSED TO PROFIT 70 ARISING FROM FEATURES UNRELATED TO THE PATENTED INVENTIONS, SUCH AS THE MANUFACTURING PROCESS, BUSINESS RISKS, OR SIGNIFICANT FEATURES OR IMPROVEMENTS ADDED BY REALAUCTION. (N) THE OPINION TESTIMONY THAT YOU HEARD FROM MR. HOFMANN AND MS. RINKE. (O) THE AMOUNT THAT A LICENSOR AND A LICENSEE (SUCH AS REALAUCTION) WOULD HAVE AGREED UPON (AT THE TIME THE INFRINGEMENT BEGAN) IF BOTH SIDES HAD BEEN REASONABLY AND VOLUNTARILY TRYING TO REACH AN AGREEMENT; THAT IS, THE AMOUNT WHICH A PRUDENT LICENSEE—WHO DESIRED, AS A BUSINESS PROPOSITION, TO OBTAIN A LICENSE TO MANUFACTURE AND SELL A PARTICULAR ARTICLE EMBODYING THE PATENTED INVENTION—WOULD HAVE BEEN WILLING TO PAY AS A ROYALTY AND YET BE ABLE TO MAKE A REASONABLE PROFIT AND WHICH AMOUNT WOULD HAVE BEEN ACCEPTABLE BY A PATENTEE WHO WAS WILLING TO GRANT A LICENSE. 151. NO ONE FACTOR IS DISPOSITIVE AND YOU CAN AND SHOULD CONSIDER THE EVIDENCE THAT HAS BEEN PRESENTED TO 71 YOU IN THIS CASE ON EACH OF THESE FACTORS. YOU MAY ALSO CONSIDER ANY OTHER FACTORS WHICH IN YOUR MIND WOULD HAVE INCREASED OR DECREASED THE ROYALTY THE INFRINGER WOULD HAVE BEEN WILLING TO PAY AND THE PATENT HOLDER WOULD HAVE BEEN WILLING TO ACCEPT, ACTING AS NORMALLY PRUDENT BUSINESS PEOPLE. FACTOR “O” ESTABLISHES THE FRAMEWORK WHICH YOU SHOULD USE IN DETERMINING A REASONABLE ROYALTY, THAT IS, THE PAYMENT THAT WOULD HAVE RESULTED FROM A NEGOTIATION BETWEEN THE PATENT HOLDER AND THE INFRINGER TAKING PLACE AT A TIME JUST PRIOR TO WHEN THE INFRINGEMENT BEGAN. DATE DAMAGES BEGIN 152. FOR PURPOSES OF YOUR DAMAGES CALCULATION, I INSTRUCT YOU THAT ANY PATENT DAMAGES TO WHICH GRANT STREET MAY BE ENTITLED BEGAN TO ACCRUE ON APRIL 21, 2009. GENERAL INSTRUCTIONS 153. NOW, AS YOU RETIRE TO THE JURY ROOM TO DELIBERATE, YOU MAY TAKE WITH YOU YOUR NOTES, AND YOU WILL BE PROVIDED WITH COPIES OF THESE INSTRUCTIONS AND THE EXHIBITS THAT THE COURT HAS ADMITTED INTO EVIDENCE. 72 154. YOU SHOULD SELECT ONE MEMBER OF THE JURY AS YOUR FOREPERSON. THAT PERSON WILL PRESIDE OVER THE DELIBERATIONS AND SPEAK FOR YOU HERE IN OPEN COURT. 155. YOU HAVE TWO MAIN DUTIES AS JURORS. THE FIRST ONE IS TO DECIDE WHAT THE FACTS ARE FROM THE EVIDENCE THAT YOU SAW AND HEARD HERE IN COURT. DECIDING WHAT THE FACTS ARE IS YOUR JOB, NOT MINE, AND NOTHING THAT I HAVE SAID OR DONE DURING THIS TRIAL WAS MEANT TO INFLUENCE YOUR DECISION ABOUT THE FACTS IN ANY WAY. 156. YOUR SECOND DUTY IS TO TAKE THE LAW THAT I GIVE YOU, APPLY IT TO THE FACTS, AND DECIDE IF, UNDER THE APPROPRIATE BURDEN OF PROOF, THE PARTIES HAVE ESTABLISHED THEIR CLAIMS. IT IS MY JOB TO INSTRUCT YOU ABOUT THE LAW, AND YOU ARE BOUND BY THE OATH THAT YOU TOOK AT THE BEGINNING OF THE TRIAL TO FOLLOW THE INSTRUCTIONS THAT I GIVE YOU, EVEN IF YOU PERSONALLY DISAGREE WITH THEM. THIS INCLUDES THE INSTRUCTIONS THAT I GAVE YOU BEFORE AND DURING THE TRIAL, AND THESE INSTRUCTIONS. ALL THE INSTRUCTIONS ARE IMPORTANT, AND YOU SHOULD CONSIDER THEM TOGETHER AS A WHOLE. 73 157. LADIES AND GENTLEMEN, DURING THE COURSE OF THE TRIAL, YOU MAY HEAR THE LAWYERS, OR PERHAPS EVEN WITNESSES, SAY SOMETHING THAT SOUNDS AS THOUGH THEY ARE GIVING A STATEMENT OR OPINION, OR POINT OF VIEW, ON WHAT THE LAW IS, OR WHAT LEGAL RULES APPLY TO THIS CASE, OR WHAT THE LAW DOES OR DOES NOT REQUIRE SOMEONE TO DO OR NOT DO. 158. SO THAT THERE CAN BE NO MISUNDERSTANDING, I INSTRUCT YOU NOW THAT IT IS FOR THE COURT, AND THE COURT ALONE, TO INSTRUCT YOU ON WHAT THE LAW IS THAT WILL APPLY TO YOUR DELIBERATIONS, AND YOUR CONSIDERATION OF THE EVIDENCE, AND THAT IN ALL EVENTS, YOU ARE TO RELY ONLY ON THE INSTRUCTIONS THAT I HAVE GIVEN YOU AT THE END OF THE TRIAL, AND AS NECESSARY, DURING THE TRIAL, AS TO WHAT THE LEGAL RULES ARE THAT YOU MUST APPLY. TO THE EXTENT YOU BELIEVE THAT A LAWYER OR EVEN A WITNESS HAS MADE A STATEMENT THAT CONFLICTS WITH THOSE INSTRUCTIONS, YOU ARE TO CONSIDER ONLY THE INSTRUCTIONS ON THE LAW PROVIDED BY THE COURT. 74 159. PERFORM THESE DUTIES FAIRLY. DO NOT LET ANY BIAS, SYMPATHY OR PREJUDICE THAT YOU MAY FEEL TOWARD ONE SIDE OR THE OTHER INFLUENCE YOUR DECISION IN ANY WAY. 160. AS JURORS, YOU HAVE A DUTY TO CONSULT WITH EACH OTHER AND TO DELIBERATE WITH THE INTENTION OF REACHING A VERDICT. EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER A FULL AND IMPARTIAL CONSIDERATION OF ALL OF THE EVIDENCE WITH YOUR FELLOW JURORS. LISTEN TO EACH OTHER CAREFULLY. IN THE COURSE OF YOUR DELIBERATIONS, YOU SHOULD FEEL FREE TO RE-EXAMINE YOUR OWN VIEWS AND TO CHANGE YOUR OPINION BASED UPON THE EVIDENCE. BUT YOU SHOULD NOT GIVE UP YOUR HONEST CONVICTIONS ABOUT THE EVIDENCE JUST BECAUSE OF THE OPINIONS OF YOUR FELLOW JURORS. NOR SHOULD YOU CHANGE YOUR MIND JUST FOR THE PURPOSE OF OBTAINING ENOUGH VOTES FOR A VERDICT. 161. WHEN YOU START DELIBERATING, DO NOT TALK TO THE JURY OFFICER, TO ME OR TO ANYONE BUT EACH OTHER ABOUT THE CASE. DURING YOUR DELIBERATIONS, YOU MUST NOT COMMUNICATE WITH OR PROVIDE ANY INFORMATION TO ANYONE BY ANY MEANS 75 ABOUT THIS CASE. YOU STILL MAY NOT USE ANY ELECTRONIC DEVICE OR MEDIA, SUCH AS A CELL PHONE, SMART PHONE LIKE BLACKBERRIES OR IPHONES, OR COMPUTER OF ANY KIND; THE INTERNET, ANY INTERNET SERVICE, OR ANY TEXT OR INSTANT MESSAGING SERVICE OR SERVICE LIKE TWITTER; OR ANY INTERNET CHAT ROOM, BLOG, WEBSITE, OR SOCIAL NETWORKING SERVICE SUCH AS FACEBOOK, MYSPACE, LINKEDIN, OR YOUTUBE, TO COMMUNICATE TO ANYONE ANY INFORMATION ABOUT THIS CASE OR TO CONDUCT ANY RESEARCH ABOUT THIS CASE UNTIL I ACCEPT YOUR VERDICT. 162. IF YOU HAVE ANY QUESTIONS OR MESSAGES FOR ME, YOU MUST WRITE THEM DOWN ON A PIECE OF PAPER, HAVE THE FOREPERSON SIGN THEM, AND GIVE THEM TO THE JURY OFFICER. THE OFFICER WILL GIVE THEM TO ME, AND I WILL RESPOND AS SOON AS I CAN. I MAY HAVE TO TALK TO THE LAWYERS ABOUT WHAT YOU HAVE ASKED, SO IT MAY TAKE SOME TIME TO GET BACK TO YOU. 163. ONE MORE THING ABOUT MESSAGES. NEVER WRITE DOWN OR TELL ANYONE HOW YOU STAND ON YOUR VOTES. FOR EXAMPLE, DO NOT WRITE DOWN OR TELL ANYONE THAT A CERTAIN NUMBER IS 76 VOTING ONE WAY OR ANOTHER. YOUR VOTES SHOULD STAY SECRET UNTIL YOU ARE FINISHED. 164. YOUR VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT OF EACH JUROR. IN ORDER FOR YOU AS A JURY TO RETURN A VERDICT, EACH JUROR MUST AGREE TO THE VERDICT. YOUR VERDICT MUST BE UNANIMOUS. 165. THERE ARE FOUR BASIC ISSUES FOR YOU TO ADDRESS IN THE QUESTIONS WE ARE PUTTING TO YOU: (A) WHETHER REALAUCTION INFRINGED ANY OF THE ASSERTED CLAIMS OF GRANT STREET’S ‘063 PATENT; (B) IF THERE WAS SUCH INFRINGEMENT, WHETHER IT WAS WILLFUL; (C) WHETHER ANY CLAIMS ARE INVALID; AND (D) WHAT MONEY DAMAGES SHOULD BE AWARDED TO GRANT STREET AS COMPENSATION FOR ANY INFRINGEMENT OF A VALID PATENT. IF YOU DECIDE THAT ANY INFRINGEMENT WAS WILLFUL, THAT DECISION SHOULD NOT AFFECT ANY DAMAGE AWARD YOU MAKE. I WILL TAKE WILLFULNESS INTO ACCOUNT LATER. 77 166. IN ORDER TO RESOLVE THE PARTIES’ DISPUTE OVER THESE BASIC ISSUES WE NEED THE ANSWERS TO CERTAIN SPECIFIC QUESTIONS. AS YOU CAN IMAGINE IT WOULD BE POSSIBLE FOR THE PARTIES TO DISPUTE A LONG LIST OF QUESTIONS. BUT DURING THE COURSE OF THE TRIAL THEY HAVE SHARPENED THE FOCUS TO THE LIST OF QUESTIONS ON THE VERDICT FORM. YOU SHOULD NOT CONCERN YOURSELVES WITH ISSUES BEYOND THESE QUESTIONS; FOR EXAMPLE, WHAT THE CONSEQUENCES OF YOUR ANSWERS MIGHT BE. PLEASE FAMILIARIZE YOURSELF WITH THE ENTIRE FORM BEFORE YOU BEGIN COMPLETING IT. THE QUESTIONS YOU ARE TO ANSWER ARE AS FOLLOWS: (READ FORM, COPIES TO JURORS) 167. YOU WILL TAKE THIS FORM TO THE JURY ROOM AND WHEN YOU HAVE REACHED UNANIMOUS AGREEMENT AS TO YOUR VERDICT, YOU WILL FILL IT IN, SIGN IT, AND YOUR FOREPERSON WILL DATE THE FORM. YOU WILL THEN SIGNAL MR. BABIK THAT YOU ARE READY TO RETURN TO THE COURTROOM AND DELIVER YOUR VERDICT. UNLESS I DIRECT YOU OTHERWISE, DO NOT REVEAL YOUR ANSWERS UNTIL YOU ARE DISCHARGED. AFTER YOU HAVE REACHED A VERDICT, YOU ARE 78 NOT REQUIRED TO TALK WITH ANYONE ABOUT THE CASE UNLESS I WOULD ORDER YOU TO DO SO. 168. ONCE AGAIN, I WANT TO REMIND YOU THAT NOTHING ABOUT MY INSTRUCTIONS AND NOTHING ABOUT THE VERDICT FORM IS INTENDED TO SUGGEST OR CONVEY IN ANY WAY OR MANNER WHAT I THINK YOUR VERDICT SHOULD BE. IT IS YOUR SOLE AND EXCLUSIVE DUTY AND RESPONSIBILITY TO DETERMINE THE VERDICT. 169. IF YOU HAVE NOT REACHED A VERDICT BY 4:30 P.M. TODAY (AND IT IS POSSIBLE THAT YOU WILL NOT), YOU MAY CONTINUE TO DELIBERATE LATER TODAY, BUT ONLY IF ALL OF YOU UNANIMOUSLY AGREE AND YOUR FOREPERSON SO ADVISES ME IN WRITING. 170. IF YOU DO NOT UNANIMOUSLY AGREE TO CONTINUE DELIBERATIONS PAST THAT TIME TODAY, THEN YOU MAY LEAVE AT 4:30 P.M. AND REPORT MONDAY MORNING AT 9:00 A.M. DIRECTLY TO THE JURY ROOM. PLEASE SIGNAL MR. BABIK IF YOU ARE DOING SO, OR IF YOU HAVE UNANIMOUSLY DECIDED TO STAY LONGER TODAY. DURING YOUR DELIBERATIONS, YOU MUST NOT COMMUNICATE WITH OR PROVIDE ANY INFORMATION TO ANYONE BY ANY MEANS ABOUT THIS CASE. YOU MAY NOT USE ANY ELECTRONIC DEVICE OR MEDIA, 79 SUCH AS THE TELEPHONE, A CELL PHONE, SMART PHONE, IPHONE , BLACKBERRY OR COMPUTER, THE INTERNET, ANY INTERNET SERVICE, ANY TEXT OR INSTANT MESSAGING SERVICE, ANY INTERNET CHAT ROOM, BLOG OR WEBSITE SUCH AS FACEBOOK, MYSPACE, LINKED-IN, YOU-TUBE, OR TWITTER, TO COMMUNICATE TO ANYONE ANY INFORMATION ABOUT THIS CASE OR TO CONDUCT ANY RESEARCH ABOUT THIS CASE UNTIL I ACCEPT YOUR VERDICT. IN OTHER WORDS, YOU CANNOT TALK TO ANYONE ON THE PHONE, CORRESPOND WITH ANYONE, OR ELECTRONICALLY COMMUNICATE WITH ANYONE ABOUT THIS CASE. YOU CAN ONLY DISCUSS THE CASE IN THE JURY ROOM WITH YOUR FELLOW JURORS DURING DELIBERATIONS. I EXPECT YOU WILL INFORM ME AS SOON AS YOU BECOME AWARE OF YOUR OR ANOTHER JUROR'S VIOLATION OF THESE INSTRUCTIONS, EVEN IF INADVERTENT. YOU MAY NOT HAVE ANY SUCH DEVICE WITH YOU DURING DELIBERATIONS. MR. BABIK WILL KEEP THEM SECURE WHILE YOU ARE DELIBERATING. 171. YOU MAY NOT USE THESE ELECTRONIC MEANS TO INVESTIGATE OR COMMUNICATE ABOUT THE CASE BECAUSE IT IS IMPORTANT THAT YOU DECIDE THE CASE BASED SOLELY ON THE 80 EVIDENCE PRESENTED IN THIS COURTROOM. INFORMATION ON THE INTERNET OR AVAILABLE THROUGH SOCIAL MEDIA MIGHT BE WRONG, INCOMPLETE, OR INACCURATE. YOU ARE ONLY PERMITTED TO DISCUSS THE CASE WITH YOUR FELLOW JURORS DURING DELIBERATIONS BECAUSE THEY HAVE SEEN AND HEARD THE SAME EVIDENCE YOU HAVE. IN OUR JUDICIAL SYSTEM, IT IS IMPORTANT THAT YOU ARE NOT INFLUENCED BY ANYTHING OR ANYONE OUTSIDE OF THIS COURTROOM. OTHERWISE, YOUR DECISION MAY BE BASED ON INFORMATION KNOWN ONLY BY YOU AND NOT YOUR FELLOW JURORS OR THE PARTIES IN THE CASE. THIS WOULD UNFAIRLY AND ADVERSELY IMPACT THE JUDICIAL PROCESS. 172. PLEASE REMEMBER MY INSTRUCTION TO NOT READ ABOUT THE CASE SHOULD THERE BE ANY ARTICLES IN THE NEWSPAPER AND DO NOT LISTEN TO ANY RADIO BROADCASTS OR TELEVISION BROADCASTS SHOULD THERE BE ANY CONCERNING THIS CASE. 173. YOU WILL NOTE FROM THE OATH ABOUT TO BE TAKEN BY MY COURTROOM DEPUTY, MR. BABIK, AND OTHER MEMBERS OF MY STAFF THAT THEY TOO, AS WELL AS ALL OTHERS, ARE FORBIDDEN TO 81 COMMUNICATE IN ANY WAY OR MANNER WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE. 174. AT THIS TIME, YOU MAY RETIRE TO THE JURY ROOM TO DELIBERATE. -- 0 -- 82

=== Sample Criminal Voir Dire ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, v. PRICE MONTGOMERY and JAMES PERRIN, Defendants. 2:14-cr-00205 Judge Mark R. Hornak COURT’S PROPOSED VOIR DIRE – 10/29/18 GOOD MORNING LADIES AND GENTLEMEN. I AM UNITED STATES DISTRICT JUDGE MARK HORNAK AND YOU HAVE BEEN SUMMONED TO THIS COURTROOM FOR THE SELECTION OF A JURY TO SERVE IN A CRIMINAL TRIAL. THIS CASE IS ENTITLED UNITED STATES OF AMERICA v. PRICE MONTGOMERY AND JAMES PERRIN. LADIES AND GENTLEMEN, BUT FOR SERVICE IN OUR U.S. MILITARY, SERVING AS A JUROR IN OUR CRIMINAL JUSTICE SYSTEM IS THE HIGHEST FORM OF CIVIC DUTY AND RESPONSIBILITY WHICH ONE IS CALLED UPON TO PERFORM AS A CITIZEN IN OUR DEMOCRATIC FORM OF GOVERNMENT. CITIZENS SITTING IN JUDGMENT OF THE ACTIONS OF FELLOW CITIZENS IS A BASIC TENET OF OUR JUSTICE SYSTEM WHICH WE BELIEVE TO BE THE FAIREST SYSTEM IN THE WORLD, AND WHICH COULD NOT FUNCTION WITHOUT YOU. WE KNOW THAT IT IS A PERSONAL AND PROFESSIONAL SACRIFICE AND INCONVENIENCE FOR YOU TO BE HERE, BUT IT IS TRULY VERY IMPORTANT AND I WILL DO EVERYTHING IN MY POWER TO MAKE THIS A MEANINGFUL EXPERIENCE FOR YOU WITH AS LITTLE INCONVENIENCE AS POSSIBLE. BELIEVE ME THIS TRIAL IS VERY IMPORTANT TO THE DEFENDANTS, THE UNITED STATES GOVERNMENT AND THIS COURT, AND WE ARE ALL MOST APPRECIATIVE OF YOUR PARTICIPATION AS CITIZEN JURORS. THE TRIAL OF THIS CASE IS ESTIMATED TO LAST APPROXIMATELY 2 WEEKS. WE WILL COMMENCE TRIAL TODAY AND PROCEED DAILY FOR THE REQUISITE NUMBER OF DAYS NEEDED TO COMPLETE THE TRIAL. WE WILL ORDINARILY BE IN SESSION FROM 9:00 A.M. TO 4:30 P.M. WE WILL NOT BE IN SESSION ON VETERAN’S DAY BUT WILL BE IN SESSION ON ELECTION DAY, IF NEED BE. THE GOVERNMENT IS PURSUING THIS CASE BY A SECOND SUPERCEDING INDICTMENT, WHICH IS A FORMAL WRITTEN DOCUMENT USED SOLELY FOR THE PURPOSE OF CHARGING A DEFENDANT WITH HAVING COMMITTED A CRIME AND INFORMING A DEFENDANT OF THE NATURE OF THE PENDING CHARGE. IT IS MERELY A STATEMENT OF THE CHARGES; IT IS NOT EVIDENCE OR PROOF OF ANY CRIMINAL CONDUCT. UNDER THE LAW, A DEFENDANT IS PRESUMED TO BE INNOCENT. THE GOVERNMENT HAS THE BURDEN OF PROVING EACH OF THE CHARGES SET FORTH IN THE SECOND SUPERCEDING INDICTMENT THROUGH WITNESS TESTIMONY AND EVIDENCE BEYOND A REASONABLE DOUBT. THE MERE FACT THAT MR. MONTGOMERY AND MR. PERRIN HAVE BEEN CHARGED WITH CRIMINAL CONDUCT AND ARE PRESENT IN THIS COURTROOM IS NOT EVIDENCE OR PROOF THAT EITHER OF THEM IS GUILTY OF ANYTHING. YOU SHOULD HAVE NO OPINION AS TO GUILT AT THIS MOMENT IN TIME. AS A MATTER OF FACT, IF YOU WERE CALLED UPON TO RENDER YOUR VERDICT AT THIS MOMENT, UNDER THE LAW YOU WOULD HAVE TO FIND EACH OF THEM 2 NOT GUILTY. WHY? BECAUSE, BY LAW, EACH OF THEM IS PRESUMED TO BE INNOCENT UNLESS PROVEN GUILTY BEYOND A REASONABLE DOUBT AND AT THIS TIME THERE HAS BEEN NO WITNESS TESTIMONY OR EVIDENCE WHATSOEVER PRESENTED TO ESTABLISH GUILT. IT IS THE JURY’S FUNCTION TO DECIDE THE FACTS OF THE CASE WITHOUT BIAS OR PREJUDICE TO A DEFENDANT OR THE GOVERNMENT. THE LAW DOES NOT PERMIT JURORS TO BE GOVERNED OR INFLUENCED BY SYMPATHY, BIAS, PREJUDICE, OR PUBLIC OPINION. YOU ARE AT ALL TIMES TO BE FAIR MINDED! THEREFORE, I MUST EXCLUDE FROM THE JURY ANYONE WHO HAS SUCH STRONG FEELINGS ABOUT ANY PERSON OR ISSUE INVOLVED IN THE CASE SUCH THAT HE OR SHE IS UNABLE TO EVALUATE THE EVIDENCE IMPARTIALLY. THE LAW ALSO AFFORDS THE GOVERNMENT AND THE DEFENDANT THE OPPORTUNITY TO PARTICIPATE IN THE JURY SELECTION PROCESS THROUGH THE EXERCISE OF PEREMPTORY CHALLENGES (EXCUSALS), WHICH MEANS THAT THEY WILL BE PERMITTED TO EXCLUDE A TOTAL OF 19 OF YOU PROSPECTIVE JURORS FROM THE CASE FOR ANY REASON WHATSOEVER. IN FACT THE LAWYERS MUST EXCLUDE A CERTAIN NUMBER OF YOU JUST TO GET TO THE REQUISITE NUMBER OF JURORS FOR A TRIAL. THE JURY IN THIS CASE WILL CONSIST OF TWELVE MEMBERS AND TWO ALTERNATES. AN ALTERNATE MAY TAKE THE PLACE OF ANY SEATED JUROR IF A JUROR MUST BE EXCUSED FOR A LEGITIMATE REASON DURING THE COURSE OF THE TRIAL. ALTERNATES WILL PARTICIPATE IN ALL PHASES OF THE OF THE TRIAL, BUT WILL NOT PARTICIPATE IN DELIBERATIONS UNLESS CALLED UPON 3 TO FILL A SLOT AS NECESSITATED BY SOME DISABILITY ON THE PART OF A SEATED JUROR. TO ASSIST BOTH THE COURT AND THE LAWYERS IN THE JURY SELECTION PROCESS, I WILL CONDUCT VOIR DIRE. THAT MEANS I WILL ASK YOU CERTAIN QUESTIONS ABOUT YOUR FEELINGS AND EXPERIENCES WHICH MIGHT INFLUENCE YOUR THINKING ABOUT THIS CASE. THESE QUESTIONS ARE DESIGNED TO SUPPLY INFORMATION TO BOTH THE GOVERNMENT AND THE DEFENSE WHICH WILL ENABLE THE LAWYERS TO EXERCISE THEIR CHALLENGES MORE INTELLIGENTLY AND EFFECTIVELY. CERTAIN QUESTIONS WILL BE ASKED OF YOU HERE IN OPEN COURT AND OTHER QUESTIONS MAY BE ASKED INDIVIDUALLY IN PRIVATE OUT OF THE HEARING OF ONE ANOTHER. THE EXERCISE OF PEREMPTORY CHALLENGES DOES NOT CONSTITUTE ANY REFLECTION WHATSOEVER ON THE PROSPECTIVE JURORS WHO ARE EXCUSED FROM DELIBERATING ON THIS CASE. IT SHOULD NOT BE INTERPRETED AS A DECISION THAT THOSE PERSONS WHO ARE EXCUSED ARE BIASED OR PREJUDICED. IT SIMPLY MEANS THAT THE LAWYERS, BASED ON THEIR TRIAL EXPERIENCE, KNOWLEDGE OF THE CASE, AND THE INFORMATION LEARNED THROUGH VOIR DIRE, HAVE DECIDED THAT SOMEONE ELSE SHOULD SIT AS A JUROR TO HEAR AND DECIDE THIS PARTICULAR CASE. NOW THAT I HAVE EXPLAINED THE PURPOSE OF VOIR DIRE TO YOU, I WILL TELL YOU A LITTLE ABOUT THE CRIMINAL CASE ON WHICH WE’RE ABOUT TO HAVE A TRIAL. 4 I WILL NOT AT THIS TIME EXPLAIN THE APPLICABLE LAWS TO YOU, BUT IN ORDER THAT YOU HAVE SOME FAMILIARITY WITH THE CASE WHICH YOU MAY BE SELECTED TO HEAR, I WILL READ A SUMMARY OF THE INDICTMENT TO YOU. THE GRAND JURY HAS RETURNED A SECOND SUPERCEDING INDICTMENT WHICH CHARGES THE RESPECTIVE DEFENDANTS AS FOLLOWS: DEFENDANTS PRICE MONTGOMERY AND JAMES PERRIN ARE CHARGED IN A TEN-COUNT SECOND SUPERSEDING INDICTMENT AT CRIM. NO. 14-205. COUNTS ONE, TWO, AND FIVE ARE ALLEGED AGAINST BOTH DEFENDANTS MR. MONTGOMERY AND MR. PERRIN. COUNT ONE CHARGES MR. MONTGOMERY AND MR. PERRIN WITH KNOWINGLY PARTICIPATING IN A CONSPIRACY TO DISTRIBUTE AND POSSESS HEROIN FROM APPROXIMATELY APRIL 2013 THROUGH JUNE 2014. COUNT TWO CHARGES MR. MONTGOMERY AND MR. PERRIN WITH POSSESSION WITH INTENT TO DISTRIBUTE HEROIN ON JUNE 8, 2014. COUNT FIVE CHARGES MR. MONTGOMERY AND MR. PERRIN WITH EACH POSSESSING AT LEAST ONE FIREARM IN FURTHERANCE OF DRUG TRAFFICKING CRIMES. AT COUNTS THREE AND FOUR, RESPECTIVELY, MR. PERRIN AND MR. MONTGOMERY ARE ALSO CHARGED WITH KNOWINGLY POSSESSING FIREARMS IN AND AFFECTING INTERSTATE COMMERCE AFTER HAVING BEEN CONVICTED OF AT LEAST ONE CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR. 5 AT COUNT SIX, MR. MONTGOMERY IS CHARGED WITH KNOWINGLY PARTICIPATING IN A CONSPIRACY TO COMMIT MONEY LAUNDERING FROM APPROXIMATELY MARCH 2012 THROUGH JUNE 1, 2014. COUNTS SEVEN THROUGH TEN ARE ALLEGED SOLELY AGAINST MR. MONTGOMERY CONCERNING THE DATE OF AUGUST 22, 2014. AT COUNTS SEVEN AND NINE, MR. MONTGOMERY IS CHARGED WITH WITNESS TAMPERING BY BOTH KILLING A PERSON, MS. TINA CRAWFORD, AND ATTEMPTING TO KILL A PERSON, MS. PATSY CRAWFORD, WITH A DESIRE TO PREVENT THE PERSON FROM COMMUNICATING WITH LAW ENFORCEMENT ABOUT THE COMMISSION OR POSSIBLE COMMISSION OF A CRIME. AT COUNT EIGHT, MR. MONTGOMERY IS CHARGED WITH USING AND DISCHARGING A FIREARM DURING AND IN RELATION TO THE CRIME OF WITNESS TAMPERING BY A KILLING A PERSON, AS CHARGED AT COUNT SEVEN. AT COUNT TEN, MR. MONTGOMERY IS CHARGED WITH USING AND DISCHARGING A FIREARM DURING AND IN RELATION TO THE CRIME OF WITNESS TAMPERING BY ATTEMPTING TO KILL A PERSON, AS CHARGED AT COUNT NINE. CERTAIN EVENTS IN THIS CASE ALLEGEDLY OCCURRED ON CHEROKEE STREET AND WILLIAM STREET, EACH IN THE CITY OF PITTSBURGH. ALTHOUGH THESE MATTERS ARE BEING TRIED IN ONE TRIAL, THE JURY WILL BE REQUIRED TO CONSIDER EACH CHARGE AS TO EACH DEFENDANT SEPARATELY AND DISTINCTLY. UNDER FEDERAL LAW, EACH OF THE CRIMES CHARGED IS PUNISHABLE BY A TERM OF IMPRISONMENT, A FINE, OR BOTH, AS DETERMINED BY THE COURT, NOT BY THE JURY. 6 AS PREVIOUSLY STATED, THE CHARGES AGAINST THE DEFENDANTS ARE SET FORTH IN A SECOND SUPERSEDING INDICTMENT, WHICH IS SIMPLY THE WRITTEN DESCRIPTION OF THE CHARGES MADE BY THE GOVERNMENT AGAINST THE DEFENDANTS, BUT THE INDICTMENT IS NOT EVIDENCE THAT EITHER DEFENDANT COMMITTED ANY CRIME OR CRIMES. THE DEFENDANTS HAVE EACH PLED NOT GUILTY TO ALL OF THE CHARGES AGAINST THEM. A DEFENDANT IS PRESUMED TO BE INNOCENT AND MAY NOT BE FOUND GUILTY BY YOU UNLESS ALL TWELVE JURORS UNANIMOUSLY FIND THAT THE GOVERNMENT HAS PROVED THE DEFENDANT’S GUILT OF A SPECIFIC CRIME BEYOND A REASONABLE DOUBT. MR. MONTGOMERY AND MR. PERRIN ARE PRESENT IN COURT AND ARE SEATED AT THE TABLES TO MY RIGHT, MR. MONTGOMERY WITH HIS ATTORNEYS, JAY MCCAMIC AND DOUGLAS SUGHRUE, AND MR. PERRIN WITH HIS ATTORNEY, MICHAEL DERISO. THE ATTORNEYS FOR THE GOVERNMENT, ASSISTANT U.S. ATTORNEYS SHAUN SWEENEY AND HEIDI GROGAN ARE SEATED AT COUNSEL TABLE TO MY LEFT ALONG WITH LAW ENFORCEMENT AGENTS MAURICE FARENTINO AND JAMIE BALL. MY COURTROOM DEPUTY IS MR. BRIAN BABIK. MY JUDICIAL LAW CLERKS ARE MR. NICK RUTIGLIANO AND MS. AMELIA DEGORY. MY JUDICIAL ASSISTANT IS MS. JUDY DRESSLER. THEY ARE OFFICERS OF THE COURT AND WILL HELP WITH SELECTION OF THE JURY. THE COURT REPORTER IS MS. KAREN EARLEY AND SHE (OR ONE OF HER COLLEAGUES) WILL STENOGRAPHICALLY TRANSCRIBE EVERYTHING THAT IS SAID IN THIS PROCEEDING. 7 LADIES AND GENTLEMEN, PLEASE RISE AND RAISE YOUR RIGHT HAND TO BE ADMINISTERED AN OATH. MR. BABIK, WILL YOU SWEAR THE PANEL OF JURORS PLEASE? WE WILL START THE SELECTION PROCESS BY ASKING EACH OF YOU TO STAND AND ANSWER ALOUD THE QUESTIONS ON THE DATA SHEET FORM PROVIDED TO YOU THIS MORNING. PLEASE TAKE YOUR TIME AND SPEAK UP SLOWLY, LOUDLY AND CLEARLY SO THAT ALL OF YOUR ANSWERS WILL BE HEARD AND UNDERSTOOD. IF YOU DO NOT UNDERSTAND ANY OF THE QUESTIONS, PLEASE FEEL FREE TO ASK ME FOR AN EXPLANATION. LET’S START WITH THE PERSON IN THE FRONT ROW ON MY RIGHT ON THE AISLE. QUESTIONNAIRE CRIMINAL JURY PERSONAL DATA INFORMATION A. B. C. D. E. F. I AM JUROR NUMBER ________________. I AM (AGE) ___________ YEARS OLD. I LIVE IN (CITY OF RESIDENCE & COUNTY) ____________. I HAVE LIVED THERE APPROXIMATELY ____ YEARS. I OWN/RENT MY HOME. I AM/AM NOT LICENSED TO DRIVE AN AUTOMOBILE. G. MY EDUCATIONAL BACKGROUND IS __________________. (E.G. HIGH SCHOOL? COLLEGE? OTHER?) IF COLLEGE, MY MAJOR AREA OF STUDY WAS ____________. H. MY EMPLOYER IS ____________________________________. MY JOB TITLE IS ________________. (IF RETIRED, WHO WAS YOUR LAST EMPLOYER AND WHAT WAS YOUR OCCUPATION?) 8 I. I AM/AM NOT MARRIED. IF MARRIED, (a) MY SPOUSE’S EMPLOYER IS _____________________. (b) MY SPOUSE’S JOB TITLE IS ______________________. (IF RETIRED, WHO WAS HIS/HER LAST EMPLOYER AND WHAT WAS HIS/HER JOB TITLE?) J. K. DO YOU HAVE CHILDREN? IF YES, PLEASE TELL US THEIR AGES AND EMPLOYMENT, IF ANY. I DO/DO NOT HAVE AN ATTORNEY. IF SO, MY ATTORNEY’S NAME IS ____________________ AND I HAVE RETAINED HIM/HER BECAUSE ________________________. QUESTIONS DIRECTED TO THE ENTIRE PANEL NOW I WILL POSE A NUMBER OF QUESTIONS TO YOU AS A GROUP. IF YOUR ANSWER TO THE QUESTION IS “NO,” REMAIN SEATED AND SAY NOTHING. IF YOUR ANSWER TO ANY OF THE FOLLOWING QUESTIONS IS “YES”, PLEASE STAND AND STATE YOUR JUROR NUMBER ONLY. AT THIS TIME, DO NOT PROVIDE ANY FURTHER INFORMATION ABOUT ANY “YES” ANSWER, UNLESS I ASK YOU TO DO SO. 1. RECALLING THE SUMMARY OF THE SECOND SUPERCEDING INDICTMENT WHICH I READ TO YOU, DO ANY OF YOU KNOW ANYTHING ABOUT THIS CASE OR HAVE YOU READ, SEEN OR HEARD ANYTHING ABOUT IT IN ANY WAY, SHAPE, OR FORM FROM ANY SOURCE? FOLLOW UP IN CHAMBERS  WHO? WHAT? HOW?  FROM WHAT SOURCE?  HAVE YOU FORMED ANY OPINION?  CAN YOU SET THAT KNOWLEDGE / OPINION ASIDE? 9  HAS IT AFFECTED YOUR ABILITY TO BE FAIR / IMPARTIAL? 2. I WILL ASK THE DEFENDANTS, PRICE MONTGOMERY AND JAMES PERRIN, TO STAND. DO ANY OF YOU KNOW, OR KNOW ANYTHING ABOUT, EITHER OF THEM? FOLLOW UP IN CHAMBERS  HOW DO YOU KNOW EITHER OF THEM?  IS HE A FRIEND / RELATIVE / BUSINESS ASSOCIATE?  WHAT HAVE YOU HEARD OF EITHER OF THEM?  WOULD YOUR KNOWLEDGE OF PRICE MONTGOMERY AND JAMES PERRIN AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 3. I WILL ALSO ASK MR. MONTGOMERY’S ATTORNEYS, JAY MCCAMIC OF THE LAW FIRM MCCAMIC, SACCO & McCOID, LLC AND DOUGLAS SUGHRUE OF THE LAW FIRM SUGHRUE LAW, TO STAND. DO ANY OF YOU KNOW EITHER OF THEM? HAS EITHER OF THEM (OR A MEMBER OF THEIR LAW FIRM) EVER REPRESENTED YOU OR ANY MEMBERS OF YOUR IMMEDIATE FAMILY, OR BEEN INVOLVED WITH YOU OR THEM IN ANY WAY? PLEASE NOTE THAT FOR PURPOSES OF ALL OF MY QUESTIONS TODAY, “IMMEDIATE FAMILY” CONSISTS OF HUSBAND / WIFE, DOMESTIC PARTNER, CHILDREN, BROTHERS, SISTERS, MOTHER AND FATHER, GRANDPARENTS, OR A 10 PERSONAL FRIEND THAT IS SO CLOSE TO YOU THAT YOU CONSIDER THEM TO BE FAMILY. FOLLOW UP IN CHAMBERS  HOW DO YOU KNOW MR. MCCAMIC OR MR. SUGHRUE?  IS EITHER OF THEM A FRIEND / RELATIVE / BUSINESS ASSOCIATE?  WHAT HAVE YOU HEARD OF MR. MCCAMIC AND MR. SUGHRUE?  WOULD YOUR KNOWLEDGE OF MR. MCCAMIC OR MR. SUGHRUE AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 4. I WILL ALSO ASK MR. PERRIN’S ATTORNEY, MICHAEL DERISO, TO STAND. DO ANY OF YOU KNOW MR. DERISO? HAS HE EVER REPRESENTED YOU OR ANY MEMBERS OF YOUR IMMEDIATE FAMILY, OR BEEN INVOLVED WITH YOU OR THEM IN ANY WAY? FOLLOW UP IN CHAMBERS  HOW DO YOU KNOW MR. DERISO?  IS HE A FRIEND / RELATIVE / BUSINESS ASSOCIATE?  WHAT HAVE YOU HEARD OF MR. DERISO?  WOULD YOUR KNOWLEDGE OF MR. DERISO AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 5. WILL THE PROSECUTORS, ASSISTANT UNITED STATES ATTORNEYS SHAUN SWEENEY AND HEIDI GROGAN, PLEASE STAND: 11 DO ANY OF YOU KNOW EITHER OF THEM? HAS HE OR SHE EVER REPRESENTED YOU OR ANY MEMBERS OF YOUR IMMEDIATE FAMILY, OR BEEN INVOLVED WITH YOU OR THEM IN ANY WAY? ALSO SITTING AT COUNSEL TABLE WITH MR. SWEENEY AND MS. GROGAN ARE LAW ENFORCEMENT AGENTS MAURICE FARENTINO AND JAMIE BALL. PLEASE STAND. DO ANY OF YOU KNOW EITHER LAW ENFORCEMENT AGENT FARENTINO OR LAW ENFORCEMENT AGENT BALL? FOLLOW UP IN CHAMBERS  WHO DO YOU KNOW?  HOW DO YOU KNOW MR. SWEENEY / MS. GROGAN / AGENTS FARENTINO OR BALL?  WHAT HAVE YOU HEARD OF MR. SWEENEY / MS. GROGAN / AGENTS FARENTINO OR BALL?  WOULD YOUR KNOWLEDGE OF MR. SWEENEY / MS. GROGAN / AGENTS FARENTINO OR BALL AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 6. DOES ANYBODY ON THE JURY PANEL KNOW ANYBODY ELSE ON THE PANEL, ME THE JUDGE, OR ANY MEMBER OF THE COURT STAFF? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 12 7. THIS CASE IS BEING PROSECUTED BY THE UNITED STATES GOVERNMENT FOLLOWING AN INVESTIGATION BY THE FEDERAL BUREAU OF INVESTIGATION, THE PITTSBURGH POLICE DEPARTMENT, THE U.S. DRUG ENFORCEMENT ADMINISTRATION AND THE PENNSYLVANIA OFFICE OF ATTORNEY GENERAL. DO YOU HAVE SUCH STRONG PERSONAL FEELINGS ABOUT THE CITY, STATE OR FEDERAL GOVERNMENT, OR ANY OF THESE AGENCIES THAT SUCH WOULD AFFECT YOUR ABILITY TO RENDER A FAIR AND IMPARTIAL VERDICT IN THIS CASE? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 8. POTENTIAL WITNESSES IN THIS CASE ARE EMPLOYED BY THE CITY OF PITTSBURGH BUREAU OF POLICE, THE PENNSYLVANIA OFFICE OF ATTORNEY GENERAL, THE FBI, THE DRUG ENFORCEMENT ADMINISTRATION, ALSO KNOWN AS THE “DEA” AND THE FEDERAL BUREAU OF ALCOHOL, TOBACCO, FIREARMS AND EXPLOSIVES. HAVE YOU EVER HAD ANY PARTICULARLY POSITIVE OR NEGATIVE EXPERIENCES WITH ANY OF THOSE OR OTHER LAW ENFORCEMENT AGENCIES, OR DO YOU HAVE VERY STRONG PERSONAL FEELINGS FOR OR AGAINST ANY OF THOSE OR OTHER SUCH AGENCIES FOR WHATEVER REASON? FOLLOW UP IN CHAMBERS  WHAT WAS THE NATURE OF THE EXPERIENCE AND WHEN DID IT OCCUR? 13  WHAT IS THE NATURE OF YOUR PERSONAL FEELINGS AGAINST THESE AGENCIES?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 9. DO YOU BELIEVE THAT THE TESTIMONY OF LAW ENFORCEMENT OFFICERS IS EITHER MORE OR LESS LIKELY TO BE BELIEVABLE OR RELIABLE THAN TESTIMONY BY ANOTHER WITNESS? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 10. THE FOLLOWING WITNESSES MAY TESTIFY IN THIS TRIAL. PLEASE STAND AND STATE YOUR JUROR NUMBER IF YOU KNOW ANY OF THE FOLLOWING WITNESSES. [COURT WILL READ NAMES FROM WITNESS LIST(S) AS PROVIDED BY COUNSEL.] FOLLOW UP IN CHAMBERS  WHICH WITNESS DO YOU KNOW?  HOW DO YOU KNOW HIM / HER?  IS HE / SHE A FRIEND / RELATIVE / BUSINESS ASSOCIATE?  WHAT HAVE YOU HEARD OF HIM / HER?  WOULD YOUR KNOWLEDGE OF HIM / HER AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 14 11. THE GOVERNMENT MAY ALSO CALL ONE OR MORE COOPERATING WITNESSES TO TESTIFY. COOPERATING WITNESSES ARE DEFENDANTS IN A CRIMINAL CASE WHO ASSIST THE GOVERNMENT IN THE INVESTIGATION AND PROSECUTION OF OTHER PERSONS, OFTEN AS A TERM OF A PLEA BARGAIN. DO YOU HAVE ANY STRONG PERSONAL BELIEFS, ONE WAY OR THE OTHER, REGARDING THE GOVERNMENT'S USE OF COOPERATING WITNESSES AND PLEA BARGAINING? FOLLOW UP IN CHAMBERS  WHAT IS THE NATURE OF YOUR PERSONAL BELIEFS REGARDING THE USE OF COOPERATING WITNESSES AND PLEA BARGAINING?  WOULD THE FACT THAT A DEFENDANT COULD RECEIVE A REDUCED SENTENCE FOR COOPERATING AGAINST ANOTHER DEFENDANT CAUSE YOU TO NECESSARILY DISCOUNT OR REJECT THE TESTIMONY OF THE COOPERATING DEFENDANT?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 12. IF MR. MONTGOMERY AND MR. PERRIN WERE TO TESTIFY, WOULD IT BE DIFFICULT FOR ANY REASON FOR YOU TO FAIRLY CONSIDER THAT TESTIMONY? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 15 13. THIS TRIAL IS ESTIMATED TO TAKE ABOUT 2 WEEKS, MORE OR LESS. HOWEVER, THIS IS REALISTICALLY JUST OUR BEST ESTIMATE OF TRIAL TIME AND THE TRIAL MAY TURN OUT TO BE A BIT SHORTER OR LONGER. IF THE TRIAL IS NOT YET CONCLUDED, WE WILL NOT BE IN SESSION ON VETERAN’S DAY (WHICH IS A WEEK FROM NEXT MONDAY) BUT WILL BE IN SESSION ON ELECTION DAY, WHICH IS NEXT TUESDAY. ALSO, OUR JURY DELIBERATION ROOM IS UP TWO FLIGHTS OF STAIRS FROM THIS COURTROOM WHICH MUST BE TRAVERSED SEVERAL TIMES DURING EACH DAY. IS THERE ANY SUBSTANTIAL, LEGITIMATE, JUSTIFIABLE HARDSHIP REASON, BE IT PERSONAL, PROFESSIONAL, BUSINESS, MEDICAL, OR OTHERWISE, WHY YOU COULD NOT SERVE AS A JUROR FOR THE DURATION OF THIS TRIAL? I MUST ADVISE YOU THAT ANY CLAIMED HARDSHIP MUST BE REAL - NOT IMAGINED, PERCEIVED OR HOPED FOR – AND SUCH CLAIMS OF HARDSHIP WILL BE SCRUTINIZED CLOSELY. FOLLOW UP IN CHAMBERS  WHAT REASON?  HOW DOES THAT PREVENT YOU FROM FULFILLING YOUR JURY SERVICE OBLIGATION? 14. IS THERE ANY MATTER PENDING IN YOUR LIFE, ABOUT WHICH YOU ARE CONCERNED, THAT WOULD PREVENT YOU FROM DEVOTING YOUR FULL, UNDIVIDED ATTENTION TO THIS TRIAL? 16 FOLLOW UP IN CHAMBERS  EXPLAIN.  HOW DOES THAT PREVENT YOU FROM FULFILLING YOUR JURY SERVICE OBLIGATION? 15. HAVE YOU EVER SERVED AS A JUROR IN A CRIMINAL OR CIVIL CASE OR AS A MEMBER OF A GRAND JURY IN EITHER THE FEDERAL OR STATE COURTS? FOLLOW UP IN CHAMBERS  DETAILS? WITHOUT DISCLOSING THE OUTCOME / VERDICT, DESCRIBE:  WHO? WHEN? WHERE?  WOULD THAT EXPERIENCE AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 16. IS THERE ANYTHING ABOUT THAT PRIOR JURY SERVICE – WHETHER IT INVOLVED THE LAWYERS, THE JUDGE, THE ACCUSED, THE EVIDENCE OR YOUR JURY DELIBERATIONS- THAT MAKE YOU FEEL THAT YOU WOULD HAVE TROUBLE BEING FAIR AND IMPARTIAL, OR THAT YOU BELIEVE WOULD MAKE IT DIFFICULT FOR YOU TO SERVE FAIRLY AS A JUROR IN THIS CASE? FOLLOW UP IN CHAMBERS  EXPLAIN.  HOW DOES THAT PREVENT YOU FROM FULFILLING YOUR JURY SERVICE OBLIGATION? 17 17. HAVE ANY OF YOU FORMED ANY OPINIONS ABOUT LAWYERS WHO WORK EITHER AS PROSECUTORS OR DEFENSE LAWYERS (THOSE IN THIS CASE OR OTHERWISE) WHICH WOULD AFFECT YOU IN DECIDING THIS CASE? FOLLOW UP IN CHAMBERS  EXPLAIN.  HOW DOES THAT PREVENT YOU FROM FULFILLING YOUR JURY SERVICE OBLIGATION? 18. HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN EMPLOYED, OR SOUGHT TO BE EMPLOYED, BY THE FEDERAL GOVERNMENT (OTHER THAN MILITARY SERVICE) OR BY ANY STATE, LOCAL, COUNTY OR FEDERAL LAW ENFORCEMENT AGENCY IN A PAID OR VOLUNTEER CAPACITY, OR BEEN A MEMBER OF ANY LAW ENFORCEMENT ORGANIZATION OR UNION, OR ANY ORGANIZATION OF LAW ENFORCEMENT OFFICERS? FOLLOW UP IN CHAMBERS  WHO? WHAT? HOW?  WHAT WAS THE OUTCOME?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 19. HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN A WITNESS OR DEFENDANT IN A CRIMINAL CASE (OTHER THAN MINOR TRAFFIC VIOLATIONS)? 18 FOLLOW UP IN CHAMBERS  WHO? WHEN? WHERE? YOUR TESTIMONY?  WHAT WAS THE OUTCOME?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 20. HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN ARRESTED, CHARGED WITH OR CONVICTED OF A CRIMINAL OFFENSE (OTHER THAN A MINOR TRAFFIC OFFENSE)? FOLLOW UP IN CHAMBERS  WHO WAS CONVICTED OF THE CRIMINAL OFFENSE?  WHAT WAS THE NATURE OF THE CRIMINAL OFFENSE?  WHAT WAS THE OUTCOME OF THE CHARGES?  IS THERE ANYTHING ABOUT THAT EXPERIENCE IN THE CRIMINAL JUSTICE SYSTEM WHICH MAKES YOU FEEL THAT YOU COULD NOT BE A FAIR AND IMPARTIAL JUROR IN THIS CASE AND/OR WOULD CAUSE YOU DIFFICULTIES IF YOU WERE TO SERVE AS A JUROR IN THIS CASE?  DETAILS? WHAT? HOW?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 21. HAVE YOU EVER BEEN A VICTIM OF A CRIME? FOLLOW UP IN CHAMBERS  EXPLAIN. 19  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 22. DO ANY OF YOU NOW, OR HAVE YOU WITHIN THE PAST FIVE YEARS, BELONGED TO OR PARTICIPATED IN ANY CRIME PREVENTION GROUPS, SUCH AS NEIGHBORHOOD WATCH ORGANIZATIONS, OR ANY OTHER CRIME PREVENTION GROUPS? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 23. DO YOU HAVE SUCH STRONG PERSONAL FEELINGS ABOUT THE PROSECUTION OF CRIMINAL CASES INVOLVING POSSESSION OR DISTRIBUTION OF ILLEGAL DRUGS, OR THE POSSESSION OR USE OF FIREARMS, THAT WOULD AFFECT YOUR ABILITY TO RENDER A FAIR AND IMPARTIAL VERDICT BASED ONLY UPON THE EVIDENCE IN THIS CASE? FOLLOW UP IN CHAMBERS  WHAT FEELINGS? EXPLAIN. 24. DO YOU HAVE ANY PRECONCEIVED OPINIONS ABOUT NARCOTICS OR FIREARMS LAWS THAT WOULD MAKE YOU UNABLE TO DECIDE THE CASE ONLY ON THE EVIDENCE PRESENTED AND THE LAW AS STATED BY THE COURT? 20 FOLLOW UP IN CHAMBERS  DETAILS? WHAT? HOW?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 25. HAVE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY EVER BEEN ADDICTED TO AN ILLEGAL NARCOTIC DRUG? FOLLOW UP IN CHAMBERS  WHO? WHAT? HOW?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 26. HAVE YOU OR ANYONE IN YOUR FAMILY EVER BEEN TREATED FOR A DRUG OR SUBSTANCE ABUSE PROBLEM? FOLLOW UP IN CHAMBERS  DETAILS? WHAT? HOW?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 27. ARE YOU OR ANY MEMBER OF YOUR IMMEDIATE FAMILY A MEMBER OF ANY ORGANIZATION WHOSE MISSION INVOLVES THE TREATMENT OF PERSONS ADDICTED TO ILLEGAL DRUGS, OR ANY TYPE OF CRIME VICTIM ADVOCACY GROUP? 21 FOLLOW UP IN CHAMBERS  WHO? WHAT? HOW?  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 28. HAVE YOU OR A MEMBER OF YOUR IMMEDIATE FAMILY BEEN EMPLOYED OR ENGAGED IN THE TREATMENT OF DRUG OR SUBSTANCE ABUSE? 29. DO YOU HAVE ANY BELIEF, ATTITUDE OR OPINION CONCERNING ACTIVITY INVOLVING THE PURCHASE, SALE OR USE OF ILLEGAL DRUGS THAT WOULD AFFECT YOUR ABILITY TO RENDER A FAIR AND IMPARTIAL VERDICT BASED ONLY ON THE EVIDENCE PRESENTED IN COURT AND THE COURT’S INSTRUCTIONS TO YOU ON THE LAW? 30. THE SECOND SUPERSEDING INDICTMENT IN THIS CRIMINAL CASE ALSO INCLUDES CHARGES RELATING TO DRUGS, FIREARMS AND MURDER. DO YOU HAVE A STRONG PERSONAL OR OTHER BELIEF THAT WOULD MAKE YOU UNABLE TO FAIRLY SIT ON A JURY RESPONSIBLE FOR FAIRLY CONSIDERING THE GUILT OR INNOCENCE OF A PERSON CHARGED WITH AN OFFENSE SUCH AS THOSE WHICH ARE CHARGED IN THIS CASE? 31. DO YOU BELIEVE THAT THE USE, POSSESSION OR DISTRIBUTION OF ANY OTHER DRUG THAT IS CURRENTLY ILLEGAL SHOULD BE LEGALIZED? FOLLOW UP IN CHAMBERS  EXPLAIN. 22  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 32. THE JURY IN THIS CASE WILL BE INSTRUCTED THAT A DEFENDANT IN A CRIMINAL CASE IS PRESUMED TO BE INNOCENT AND THAT THAT PRESUMPTION OF INNOCENCE REMAINS WITH HIM THROUGHOUT THE ENTIRE TRIAL. DO YOU HAVE ANY DOUBT OR RESERVATION ABOUT YOUR ABILITY TO FOLLOW THIS INSTRUCTION? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 33. DO YOU HAVE ANY DIFFICULTY ACCEPTING THE LEGAL CONCEPT THAT A DEFENDANT HAS ABSOLUTELY NO BURDEN TO PROVE HIS INNOCENCE? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 34. IF A DEFENDANT CHOSES TO NOT TESTIFY, TO PRESENT ANY WITNESSES OR TO PRESENT ANY EVIDENCE WHATSOEVER, WOULD THAT CAUSE YOU TO BELIEVE HE WAS PROBABLY GUILTY? 23 35. DO YOU THINK THAT BECAUSE EITHER MR. MONTGOMERY OR MR. PERRIN WERE ARRESTED, OR BECAUSE EITHER HAS BEEN CHARGED WITH A CRIME IN THIS CASE, THAT HE IS PROBABLY GUILTY OF THAT CRIME OR SOME OTHER CRIME? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 36. I SHALL ALSO INSTRUCT THE JURY THAT THE DEFENDANT IN A CRIMINAL CASE DOES NOT HAVE TO TESTIFY OR PRESENT ANY EVIDENCE ON HIS OWN BEHALF AND THAT HIS DECISION TO NOT DO SO IS NOT TO BE CONSIDERED EVIDENCE AGAINST HIM OF HIS GUILT, OR HELD AGAINST HIM IN ANY WAY. DO YOU HAVE ANY DOUBT OR RESERVATION ABOUT BEING ABLE TO FOLLOW THIS INSTRUCTION? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 37. I SHALL INSTRUCT THE JURY THAT THE GOVERNMENT HAS THE BURDEN OF PROVING A DEFENDANT GUILTY OF ANY CHARGE BEYOND A REASONABLE DOUBT AS TO THAT CHARGE. 24 DO YOU HAVE ANY DOUBT OR RESERVATION ABOUT YOUR ABILITY TO FOLLOW THIS INSTRUCTION? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 38. IF YOU WERE REPRESENTING THE GOVERNMENT OR A DEFENDANT IN THIS CASE, IS THERE ANY REASON WHY YOU WOULD NOT BE CONTENT TO HAVE THE CASE DECIDED BY SOMEONE IN YOUR FRAME OF MIND? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 39. TO ADMIT TO HAVING SOME SYMPATHY FOR OR PERSONAL FEELINGS AGAINST EITHER DEFENDANT OR THE GOVERNMENT IN THIS CASE FOR ANY REASON IS NOTHING TO BE ASHAMED OF AND DOES NOT REFLECT BADLY UPON YOU AS A PERSON. HOWEVER, BOTH THE GOVERNMENT AND THE DEFENDANT ARE ENTITLED TO HAVE THIS CASE HEARD BY A FAIR AND IMPARTIAL JURY THAT WILL DECIDE THE CASE SOLELY ACCORDING TO THE EVIDENCE ADMITTED IN THIS COURT AND ACCORDING TO THE COURT'S INSTRUCTIONS ON THE LAW. THE LAW PROVIDES THAT THE JURY MAY NOT BE GOVERNED BY SYMPATHY, PREJUDICE OR PUBLIC OPINION. WITH THIS IN MIND, 25 DO YOU HAVE ANY REASON WHY YOU WOULD NOT BE ABLE TO GIVE EITHER THE GOVERNMENT OR ANY DEFENDANT A FAIR TRIAL BASED SOLELY UPON THE EVIDENCE ADMITTED AT TRIAL AND THE INSTRUCTIONS GIVEN BY THE COURT? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 40. IS THERE ANYTHING ABOUT THE NATURE OF THIS CASE OR THOSE INVOLVED IN IT WHICH YOU THINK WOULD MAKE IT DIFFICULT FOR YOU TO TRY THE ISSUES FAIRLY AND IMPARTIALLY WITHOUT ANY PREJUDICE OR BIAS? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 41. DO YOU AT THIS MOMENT HAVE ANY OPINION AS TO MR. MONTGOMERY’S OR MR. PERRIN’S GUILT OR INNOCENCE? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 26 42. DURING DELIBERATION, IF YOU HAD ALREADY FORMED AN OPINION, WOULD IT BE DIFFICULT FOR YOU TO KEEP AN OPEN MIND AND TO CONSIDER THE OPINION OF OTHERS AS YOU REACH A UNANIMOUS VERDICT? FOLLOW UP IN CHAMBERS  EXPLAIN.  WOULD THAT AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? 43. HAVING HEARD THE QUESTIONS OF THE COURT DO YOU KNOW OF ANY REASON WHY YOU COULD NOT SIT ON THIS JURY AND RENDER A FAIR AND IMPARTIAL VERDICT BASED SOLELY UPON THE EVIDENCE PRESENTED IN THIS CASE AND THE LAW AS I WILL INSTRUCT YOU? FOLLOW UP IN CHAMBERS  WHAT? HOW?  EXPLAIN WHY IT WOULD AFFECT YOUR ABILITY TO BE A FAIR AND IMPARTIAL JUROR IN THIS CASE? RETIRE TO CHAMBERS FOR INDIVIDUAL VOIR DIRE RETURN TO COURT ATTORNEYS - STRIKE PROCESS 27

=== Sample Criminal Opening Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA, v. PRICE MONTGOMERY and JAMES PERRIN, Defendants. 2:14-cr-00205 Judge Mark R. Hornak COURT’S PROPOSED PRELIMINARY JURY INSTRUCTIONS – 10/29/18 TO COUNSEL: ARE YOU SATISFIED WITH THE JURY AS SELECTED? TO COURTROOM DEPUTY: SWEAR IN JURY. YOU HAVE NOW BEEN SWORN AS THE JURY TO SIT IN DETERMINATION OF THIS CRIMINAL CASE. I WANT TO TAKE A FEW MINUTES TO GIVE YOU SOME PRELIMINARY INSTRUCTIONS ABOUT YOUR DUTIES AS JURORS. AT THE END OF THE TRIAL I WILL GIVE YOU MORE DETAILED INSTRUCTIONS REGARDING THE LAW AND YOUR DECISION MAKING RESPONSIBILITIES. I PREVIOUSLY INTRODUCED MY COURTROOM STAFF TO YOU. PLEASE DO NOT ASK THE COURT STAFF ANY QUESTIONS ABOUT THE SUBSTANCE OF THE CASE DURING THE TRIAL, EXCEPT YOU MAY ASK MR. BABIK OR ANOTHER MEMBER OF MY STAFF ABOUT PERSONAL MATTERS RELATING DIRECTLY TO YOUR SERVICE AS A JUROR, SUCH AS TRANSPORTATION PROBLEMS OR THE NEED FOR SUPPLIES IN THE JURY ROOM AND THE LIKE. YOUR ROLE AS JURORS IS TO FIND THE FACTS AND RENDER VERDICTS. UNDER OUR SYSTEM OF JUSTICE, YOU ARE THE SOLE JUDGES OF THE FACTS. YOU WILL HAVE TO DECIDE WHAT HAPPENED. YOU MUST DECIDE THE FACTS ONLY FROM THE EVIDENCE PRESENTED TO YOU IN THIS TRIAL. YOU WILL HEAR THE TESTIMONY AND EVIDENCE, DECIDE WHAT THE FACTS ARE, AND THEN APPLY TO THOSE FACTS THE LAW THAT I WILL GIVE TO YOU IN MY FINAL INSTRUCTIONS. THAT IS HOW YOU WILL REACH YOUR VERDICT. I PLAY NO PART IN FINDING THE FACTS. YOU SHOULD NOT TAKE ANYTHING THAT I MAY SAY OR DO DURING THE TRIAL AS INDICATING WHAT I THINK OF THE EVIDENCE OR ABOUT WHAT YOUR VERDICTS SHOULD BE. MY ROLE IS TO MAKE WHATEVER LEGAL DECISIONS HAVE TO BE MADE DURING THE COURSE OF THE TRIAL AND TO EXPLAIN TO YOU THE LEGAL PRINCIPLES THAT MUST GUIDE YOU IN YOUR DECISIONS. YOU MUST NOT SUBSTITUTE OR FOLLOW YOUR OWN NOTION OR OPINION ABOUT WHAT THE LAW IS OR OUGHT TO BE. YOU MUST FOLLOW THE LAW THAT I GIVE TO YOU WHETHER YOU AGREE WITH IT OR NOT. YOU MUST FOLLOW MY INSTRUCTIONS CAREFULLY. EACH OF THE INSTRUCTIONS IS IMPORTANT, AND YOU MUST FOLLOW ALL OF THEM. PERFORM YOUR DUTIES FAIRLY AND IMPARTIALLY. DO NOT ALLOW SYMPATHY, PREJUDICE, FEAR, BIAS, OR PUBLIC OPINION TO INFLUENCE YOU. YOU SHOULD ALSO NOT BE INFLUENCED IN ANY FASHION BY ANY PERSON’S RACE, COLOR, RELIGION, NATIONAL ANCESTRY, SEX, GENDER, PROFESSION, OR OCCUPATION. 2 AS STATED EARLIER, THIS CRIMINAL CASE HAS BEEN BROUGHT BY THE UNITED STATES GOVERNMENT AGAINST THE DEFENDANTS, PRICE MONTGOMERY AND JAMES PERRIN. THE TEN COUNT SECOND SUPERSEDING INDICTMENT IS THE FORMAL CHARGING DOCUMENT IN THIS CASE. IT CHARGES THE DEFENDANTS AS FOLLOWS: COUNTS ONE, TWO, AND FIVE ARE ALLEGED AGAINST BOTH DEFENDANTS, MR. MONTGOMERY AND MR. PERRIN. COUNT ONE CHARGES MR. MONTGOMERY AND MR. PERRIN WITH KNOWINGLY PARTICIPATING IN A CONSPIRACY TO DISTRIBUTE AND POSSESS HEROIN FROM APPROXIMATELY APRIL 2013 THROUGH JUNE 2014. COUNT TWO CHARGES MR. MONTGOMERY AND MR. PERRIN WITH POSSESSION WITH INTENT TO DISTRIBUTE HEROIN ON JUNE 8, 2014. COUNT FIVE CHARGES MR. MONTGOMERY AND MR. PERRIN WITH POSSESSING AT LEAST ONE FIREARM IN FURTHERANCE OF DRUG TRAFFICKING CRIMES. AT COUNTS THREE AND FOUR, RESPECTIVELY, MR. PERRIN AND MR. MONTGOMERY ARE ALSO CHARGED WITH KNOWINGLY POSSESSING FIREARMS IN AND AFFECTING INTERSTATE COMMERCE AFTER HAVING PREVIOUSLY BEEN CONVICTED OF ONE OR MORE CRIMES PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR. AT COUNT SIX, MR. MONTGOMERY IS CHARGED WITH KNOWINGLY PARTICIPATING IN A CONSPIRACY TO COMMIT MONEY LAUNDERING FROM APPROXIMATELY MARCH 2012 THROUGH JUNE 1, 2014. COUNTS SEVEN THROUGH TEN ARE ALLEGED SOLELY AGAINST MR. MONTGOMERY CONCERNING THE DATE OF AUGUST 22, 2014. AT COUNTS SEVEN 3 AND NINE, MR. MONTGOMERY IS CHARGED WITH WITNESS TAMPERING BY BOTH KILLING A PERSON AND ATTEMPTING TO KILL A PERSON WITH A DESIRE TO PREVENT THE PERSON FROM COMMUNICATING WITH LAW ENFORCEMENT ABOUT THE COMMISSION OR POSSIBLE COMMISSION OF A CRIME. AT COUNT EIGHT, MR. MONTGOMERY IS CHARGED WITH USING AND DISCHARGING A FIREARM DURING AND IN RELATION TO THE CRIME OF WITNESS TAMPERING BY A KILLING A PERSON, AS CHARGED AT COUNT SEVEN. AT COUNT TEN, MR. MONTGOMERY IS CHARGED WITH USING AND DISCHARGING A FIREARM DURING AND IN RELATION TO THE CRIME OF WITNESS TAMPERING BY ATTEMPTING TO KILL A PERSON, AS CHARGED AT COUNT NINE. AS PREVIOUSLY STATED, THE CHARGES AGAINST THE DEFENDANTS ARE SET FORTH IN AN INDICTMENT, WHICH IS SIMPLY THE DESCRIPTION OF THE CHARGES MADE BY THE GOVERNMENT AGAINST THE DEFENDANTS. THAT INDICTMENT IS NOT EVIDENCE THAT ANY DEFENDANTS COMMITTED A CRIME OR CRIMES. THE DEFENDANTS HAVE PLED NOT GUILTY TO THE CHARGES. ANY DEFENDANT IS PRESUMED TO BE INNOCENT AND MAY NOT BE FOUND GUILTY BY YOU UNLESS ALL TWELVE OF YOU UNANIMOUSLY FIND THAT THE GOVERNMENT HAS PROVED THAT DEFENDANT’S GUILT AS TO A SPECIFIC CHARGE BEYOND A REASONABLE DOUBT. THIS IS ANTICIPATED TO BE A TRIAL LASTING APPROXIMATELY 2 WEEKS. WE WILL START TRIAL EACH DAY AT APPROXIMATELY 9:15 A.M. AND WE’LL TAKE A LUNCH RECESS USUALLY BEGINNING BETWEEN 12:00 P.M. - 12:30 P.M. RESUMING AT ABOUT 1:30 P.M. WE WILL TAKE A 10 TO 15-MINUTE RECESS 4 DURING EACH OF THE MORNING AND THE AFTERNOON SESSIONS OF COURT. WE WILL ADJOURN FOR THE DAY AT APPROXIMATELY 4:30 P.M. IT IS IMPORTANT, LADIES AND GENTLEMEN, THAT EACH OF YOU ARRIVE NO LATER THAN 9:00 A.M. SO THAT WE MAY BEGIN PROMPTLY. WE CAN’T BEGIN UNTIL EVERYONE IS HERE, BECAUSE ALL JURORS MUST HEAR ALL OF THE EVIDENCE IN THE CASE. IF ANYONE IS LATE, THE OTHER JURORS, THE PARTIES, THE LAWYERS, THE WITNESSES AND THE COURT MUST WAIT UNTIL ALL JURORS ARE HERE. THEREFORE, YOU ARE REQUIRED TO BE HERE ON TIME FOR EACH MORNING AND AFTERNOON SESSION. THE FIRST STEP IN THE TRIAL WILL BE THE ATTORNEYS’ OPENING STATEMENTS. THE GOVERNMENT IN ITS OPENING STATEMENT WILL TELL YOU ABOUT THE EVIDENCE WHICH IT INTENDS TO PRESENT TO YOU, SO THAT YOU WILL HAVE AN IDEA OF WHAT THE GOVERNMENT'S CASE IS GOING TO BE. JUST AS THE INDICTMENT ITSELF IS NOT EVIDENCE, NEITHER IS THE OPENING STATEMENT EVIDENCE. ITS PURPOSE IS ONLY TO HELP YOU UNDERSTAND WHAT THE EVIDENCE WILL BE AND WHAT THE GOVERNMENT WILL ATTEMPT TO PROVE. NEXT, THE ATTORNEYS FOR THE DEFENDANTS MAY MAKE AN OPENING STATEMENT OR MAY RESERVE THEIR RIGHT TO DO SO UNTIL AFTER THE GOVERNMENT HAS PRESENTED ALL ITS EVIDENCE IN PROSECUTION OF THE CASE. NEXT, THE GOVERNMENT WILL OFFER WITNESSES AND EXHIBITS AS EVIDENCE THAT IT CONTENDS WILL PROVE THE CHARGES AGAINST THE 5 DEFENDANTS. THE GOVERNMENT'S EVIDENCE MAY CONSIST OF THE TESTIMONY OF WITNESSES AS WELL AS DOCUMENTS, REPORTS, PHOTOGRAPHS, RECORDINGS AND OTHER THINGS INTRODUCED FOR YOUR CONSIDERATION AS EXHIBITS. SOME OF YOU HAVE PROBABLY HEARD THE TERMS "DIRECT EVIDENCE” AND "CIRCUMSTANTIAL EVIDENCE." DIRECT EVIDENCE IS DIRECT PROOF OF A FACT, SUCH AS TESTIMONY BY A WITNESS ABOUT WHAT THE WITNESS ACTUALLY KNOWS, SAID OR HEARD OR SAW OR DID. CIRCUMSTANTIAL EVIDENCE OR INDIRECT EVIDENCE IS SIMPLY PROOF OF ONE OR MORE FACTS FROM WHICH YOU COULD FIND ANOTHER FACT. FOR EXAMPLE, ALTHOUGH YOU CAN HARDLY SEE OUTSIDE FROM THIS ROOM, IF ONE OR MORE PERSONS WALKED IN WITH A WET TRENCH COAT OR DRIPPING UMBRELLA, IT WOULD BE REASONABLE AND LOGICAL TO CONCLUDE FROM THAT INDIRECT OR CIRCUMSTANTIAL EVIDENCE THAT IT HAD BEEN RAINING OUTSIDE. YOU ARE TO CONSIDER ALL THE DIRECT AND CIRCUMSTANTIAL EVIDENCE PRESENTED IN THIS TRIAL AND GIVE SUCH EVIDENCE THE WEIGHT YOU THINK IT DESERVES. AFTER THE GOVERNMENT HAS PRESENTED ALL OF ITS EVIDENCE, THE ATTORNEYS FOR ONE OR MORE DEFENDANTS MAY PRESENT TESTIMONY AND/OR OTHER EVIDENCE ON THAT DEFENDANT’S BEHALF, BUT A DEFENDANT IS NOT REQUIRED TO DO SO. YOU MUST KNOW THAT A DEFENDANT AT ALL TIMES IS PRESUMED TO BE INNOCENT AND THAT THE GOVERNMENT MUST PROVE THE GUILT OF ANY DEFENDANT BEYOND A REASONABLE DOUBT. A DEFENDANT DOES NOT HAVE TO PROVE HIS INNOCENCE AND HAS NO LEGAL 6 OBLIGATION TO TESTIFY OR TO PRESENT ANY TESTIMONY OR EVIDENCE WHATSOEVER. IN FACT, UNDER THE LAW, NO INFERENCE OR SUGGESTION OF GUILT CAN BE DRAWN BY YOU FROM THE FACT THAT A DEFENDANT DOES NOT TESTIFY OR PRESENT ANY EVIDENCE WHATSOEVER. IF A DEFENDANT DOES DECIDE TO PRESENT EVIDENCE, THE GOVERNMENT MAY INTRODUCE REBUTTAL EVIDENCE. THE DIRECT EXAMINATION OF EACH WITNESS IS CONDUCTED BY THE ATTORNEY WHO CALLED THE WITNESS TO THE WITNESS STAND AND EACH WITNESS MAY ALSO BE CROSS-EXAMINED BY OPPOSING COUNSEL. I MAY ASK QUESTIONS OF A WITNESS IN ORDER TO OBTAIN INFORMATION OR BRING OUT SOME FACTS NOT FULLY DEVELOPED BY THE TESTIMONY. HOWEVER, YOU ARE NOT PERMITTED TO ASK QUESTIONS OF WITNESSES. YOU MAY ALSO HEAR FROM ONE OR MORE WITNESSES WHO WILL GIVE OPINIONS ABOUT MATTERS REQUIRING SPECIAL KNOWLEDGE OR SKILL. YOU SHOULD JUDGE THIS TESTIMONY IN THE SAME WAY THAT YOU JUDGE THE TESTIMONY OF ANY OTHER WITNESS. THE FACT THAT SUCH PERSON HAS GIVEN AN OPINION DOES NOT MEAN THAT YOU ARE REQUIRED TO ACCEPT IT. GIVE THE TESTIMONY WHATEVER WEIGHT YOU THINK IT DESERVES, CONSIDERING THE REASONS GIVEN FOR THE OPINION, THE WITNESS’S QUALIFICATIONS, AND ALL OF THE OTHER EVIDENCE IN THE CASE. THE EVIDENCE IN THIS CASE WILL CONSIST NOT ONLY OF TESTIMONY FROM THE WITNESSES AND DOCUMENTS WHICH WILL BE SHOWN TO YOU, BUT EVIDENCE ALSO INCLUDES SUCH FAIR AND REASONABLE INFERENCES AS MAY 7 PROPERLY FLOW FROM FACTS WHICH ARE NOT DISPUTED OR WHICH YOU BELIEVE TO BE TRUE. YOU SHOULD CONSIDER BOTH KINDS OF EVIDENCE. THE LAW MAKES NO DISTINCTION BETWEEN THE WEIGHT TO BE GIVEN TO EITHER DIRECT OR CIRCUMSTANTIAL EVIDENCE. YOU ARE TO DECIDE HOW MUCH WEIGHT TO GIVE ANY EVIDENCE. IN OTHER WORDS, YOU, LADIES AND GENTLEMEN OF THE JURY, MAY DRAW UPON YOUR OWN EXPERIENCES IN LIFE AND YOUR OWN COMMON SENSE IN INTERPRETING THE FACTS WHICH WILL BE PRESENTED TO YOU BY THE PARTIES IN THIS CASE. AFTER ALL THE WITNESS TESTIMONY AND EVIDENCE FROM BOTH SIDES HAS BEEN PRESENTED, THE ATTORNEYS WILL MAKE THEIR CLOSING ARGUMENTS TO YOU. IN THESE ARGUMENTS, THE ATTORNEYS WILL GIVE YOU THEIR VIEWS OF THAT WHICH THE EVIDENCE PROVES OR DOES NOT PROVE ON THE QUESTIONS THAT YOU HAVE TO DECIDE. THESE ARGUMENTS SHOULD BE GIVEN DUE CONSIDERATION, BUT THE ARGUMENTS THEMSELVES ARE NOT EVIDENCE. ONLY TESTIMONY AND EVIDENCE WHICH HAS BEEN ADMITTED INTO THE RECORD DURING THE TRIAL CAN BE CONSIDERED BY YOU IN DETERMINING THE FACTS OF THIS MATTER. IN THE FINAL PHASE OF THE TRIAL I WILL INSTRUCT YOU ABOUT THE RULES OF LAW WHICH YOU ARE TO APPLY IN REACHING YOUR VERDICT. AFTER HEARING MY INSTRUCTIONS, YOU WILL LEAVE THE COURTROOM TOGETHER AND PROCEED TO THE JURY DELIBERATION ROOM TO MAKE YOUR DECISIONS. YOUR DELIBERATIONS WILL BE SECRET. 8 DURING THE TRIAL I WILL DECIDE WHICH RULES OF LAW APPLY TO THIS CASE. THESE DECISIONS WILL BE IN RESPONSE TO ISSUES RAISED BY THE ATTORNEYS AS WE GO ALONG AND ALSO IN THE FINAL INSTRUCTIONS GIVEN TO YOU AFTER THE EVIDENCE AND ARGUMENTS ARE COMPLETED. I MAY ALSO GIVE YOU CERTAIN INSTRUCTIONS DURING THE COURSE OF THE TRIAL. THE ADMISSION OF EVIDENCE IN COURT IS GOVERNED BY RULES OF LAW. DURING THE TRIAL, THE ATTORNEYS MAY DEEM IT NECESSARY TO MAKE OBJECTIONS TO CERTAIN TESTIMONY OR EVIDENCE AND IT THEN BECOMES MY DUTY TO RULE ON THOSE OBJECTIONS AND TO DECIDE WHETHER CERTAIN TESTIMONY OR OTHER EVIDENCE MAY BE PERMITTED FOR YOUR CONSIDERATION. YOU MUST NOT CONCERN YOURSELF WITH THE OBJECTIONS OR THE REASONS FOR MY RULINGS. YOU MUST NOT CONSIDER TESTIMONY OR EXHIBITS TO WHICH I HAVE SUSTAINED AN OBJECTION, OR WHICH I HAVE ORDERED STRICKEN FROM THE RECORD. NONE OF MY RULINGS SHOULD BE REGARDED AS AN INDICATION OF MY OPINION AS TO WHAT YOUR FINDINGS SHOULD BE. YOU ARE NOT TO CONSIDER THE FACT THAT AN ATTORNEY OBJECTS TO CERTAIN EVIDENCE AS BEING AN ATTEMPT BY THAT ATTORNEY OR HIS CLIENT TO WITHHOLD ANY EVIDENCE FROM YOU WHICH YOU NEED TO PROPERLY DETERMINE THE CASE. THE ONLY WAY THAT I CAN RULE ON THE LEGAL EFFECT OF CERTAIN EVIDENCE IS IF THE ATTORNEY RAISES AN OBJECTION. IF THE ATTORNEY DOES NOT RAISE AN OBJECTION AT THE APPROPRIATE TIME, THE ATTORNEY IS NOT FULFILLING HIS DUTY TO THE CLIENT OR TO THE COURT. 9 THEREFORE, YOU SHOULD NOT HOLD IT AGAINST AN ATTORNEY OR THE ATTORNEY’S CLIENT IF OBJECTIONS TO EVIDENCE ARE MADE. FROM TIME TO TIME, THERE MAY BE CONFERENCES AT WHAT WE CALL SIDE BAR. THE ATTORNEYS AND I WILL MEET AT THE FAR END OF THE BENCH TO DISCUSS LEGAL POINTS WHICH MAY BE INVOLVED IN THE EVIDENCE. AGAIN, THIS IS NOT AN ATTEMPT TO WITHHOLD INFORMATION FROM YOU WHICH YOU SHOULD HAVE, BUT RATHER, IT IS A MEANS OF INSURING THAT YOU HEAR ONLY THE LEGALLY ADMISSIBLE EVIDENCE UPON WHICH YOU ARE TO BASE YOUR DECISION. ALSO, DUE TO THE TIGHT QUARTERS IN THE COURTROOM, I HAVE INSTRUCTED THE LAWYERS THAT THEY MAKE PRESENTATIONS OR ASK QUESTIONS EITHER FROM THE LECTERN, OR SEATED OR STANDING AT COUNSEL TABLE, SO IF THEY DO SO, THAT IS PERFECTLY OK WITH THE COURT. I MAY NOT ALWAYS GRANT AN ATTORNEY’S REQUEST FOR A CONFERENCE. DO NOT CONSIDER MY GRANTING OR DENYING A REQUEST FOR A CONFERENCE AS ANY INDICATION OF MY OPINION OF THE CASE OR OF WHAT YOUR VERDICT SHOULD BE. IT WILL BE YOUR JOB AS JURORS TO FIND AND DETERMINE THE FACTS OF THIS MATTER. IF AT ANY TIME I SHOULD MAKE ANY COMMENT REGARDING THE FACTS, YOU ARE AT LIBERTY TO DISREGARD IT. MOREOVER, YOU SHOULD NOT TAKE ANY QUESTIONS THAT I MAY ASK WITNESSES AS AN INDICATION OF MY OPINION AS TO HOW YOU SHOULD DETERMINE THE ISSUES OF FACT. ANY OPINION WHICH YOU THINK I MAY HAVE AS TO THE FACTS WOULD NOT BE AT 10 ALL IMPORTANT, BECAUSE YOU AND YOU ALONE ARE THE SOLE JUDGES OF THE FACTS. THE EVIDENCE FROM WHICH YOU ARE TO FIND THE FACTS CONSISTS OF THE FOLLOWINGS: 1. 2. 3. THE TESTIMONY OF THE WITNESS; DOCUMENTS AND OTHER THINGS RECEIVED AS EXHIBITS; ANY FACTS THAT ARE STIPULATED—THAT IS, FORMALLY AGREED TO BY THE PARTIES; AND 4. ANY FACTS THAT ARE JUDICIALLY NOTICED—THAT IS, FACTS I SAY YOU MUST ACCEPT AS TRUE EVEN WITHOUT OTHER EVIDENCE. THE FOLLOWING THINGS ARE NOT EVIDENCE: 1 STATEMENTS, ARGUMENTS, AND QUESTIONS OF THE LAWYERS FOR THE PARTIES IN THIS CASE; 2 3 4 OBJECTIONS BY LAWYERS; ANY TESTIMONY I TELL YOU TO DISREGARD; AND ANYTHING YOU MAY SEE OR HEAR ABOUT THIS CASE OUTSIDE THE COURTROOM. YOU MUST MAKE YOUR DECISION BASED ONLY ON THE EVIDENCE THAT YOU SEE AND HEAR IN COURT. DO NOT LET RUMORS, SUSPICIONS, PRECONCEIVED NOTIONS OR IDEAS ABOUT THE LAW, OR ANYTHING ELSE THAT YOU MAY SEE OR HEAR OUTSIDE OF COURT, OR MAY PREVIOUSLY THOUGHT OR BELIEVED INFLUENCE YOUR DECISION IN ANY WAY. 11 YOU SHOULD USE YOUR COMMON SENSE IN WEIGHING THE EVIDENCE. CONSIDER IT IN LIGHT OF YOUR EVERYDAY EXPERIENCE WITH PEOPLE AND EVENTS, AND GIVE IT WHATEVER WEIGHT YOU BELIEVE IT DESERVES. IF YOUR EXPERIENCE TELLS YOU THAT CERTAIN EVIDENCE REASONABLY LEADS TO A CONCLUSION, YOU ARE PERMITTED, BUT NOT REQUIRED, TO REACH THAT CONCLUSION. ALSO, CERTAIN TESTIMONY OR OTHER EVIDENCE MAY BE ORDERED STRUCK FROM THE RECORD AND YOU WILL BE INSTRUCTED TO DISREGARD THIS EVIDENCE. DO NOT CONSIDER ANY TESTIMONY OR OTHER EVIDENCE THAT GETS STRUCK OR EXCLUDED. DO NOT SPECULATE ABOUT WHAT A WITNESS MIGHT HAVE SAID OR WHAT AN EXHIBIT MIGHT HAVE SHOWN. IT WILL BE YOUR JOB AS JURORS TO FIND AND DETERMINE THE FACTS DILIGENTLY AND CONSCIENTIOUSLY, FOR ORDINARILY THERE IS NO MEANS OF CORRECTING AN ERRONEOUS DETERMINATION OF THE FACTS BY A JURY. YOU WILL HAVE TO DECIDE WHAT TESTIMONY YOU BELIEVE AND WHAT TESTIMONY YOU DON’T BELIEVE; THAT’S KNOWN AS CREDIBILITY OR BELIEVABILITY. YOU SHOULD DECIDE WHETHER YOU BELIEVE WHAT EACH WITNESS HAS TO SAY, AND HOW IMPORTANT THAT TESTIMONY IS. IN MAKING THAT DECISION, I SUGGEST THAT YOU ASK YOURSELF A FEW QUESTIONS: DID THE WITNESS IMPRESS YOU AS HONEST? DID THE WITNESS HAVE ANY PARTICULAR REASON TO TELL OR NOT TO TELL THE TRUTH? DID THE WITNESS HAVE A PERSONAL INTEREST IN THE OUTCOME OF THE CASE? DID THE WITNESS SEEM TO HAVE A GOOD MEMORY? DID THE WITNESS HAVE THE OPPORTUNITY 12 AND ABILITY TO OBSERVE ACCURATELY THE THINGS THE WITNESS TESTIFIED ABOUT? DID THE WITNESS APPEAR TO UNDERSTAND THE QUESTIONS CLEARLY AND ANSWER THEM DIRECTLY? DID THE WITNESS’ TESTIMONY DIFFER FROM THE TESTIMONY OF OTHER WITNESSES? THESE ARE A FEW OF THE CONSIDERATIONS THAT WILL HELP YOU DETERMINE THE ACCURACY OF WHAT EACH WITNESS WILL SAY. ALSO, YOU DON’T HAVE TO BELIEVE SOMETHING IS TRUE SIMPLY BECAUSE MORE WITNESSES SAID IT IS TRUE THAN SAID IT IS NOT TRUE. YOU MAY FIND THAT THE TESTIMONY OF A SMALLER NUMBER OF WITNESSES ABOUT AN EVENT IS MORE BELIEVABLE THAN THE TESTIMONY OF A LARGER NUMBER OF WITNESSES. DURING THE TRIAL YOU MAY BE TOLD THAT THE PARTIES AGREE, OR STIPULATE, TO WHAT A WITNESS’S TESTIMONY WOULD BE IF THE WITNESS WERE CALLED AT TRIAL. YOU WILL CONSIDER THAT STIPULATION TO BE THE TESTIMONY OF THAT WITNESS AS IF THE WITNESS WAS TESTIFYING. LIKEWISE, YOU MAY BE TOLD THAT THE PARTIES AGREE, OR STIPULATE, TO A CERTAIN FACT. YOU MAY ACCEPT THAT FACT AS TRUE EVEN THOUGH NOTHING MORE IS SAID ABOUT IT. HOWEVER, UNLESS I INSTRUCT YOU OTHERWISE, YOU ARE NOT DUTY-BOUND TO ACCEPT A STIPULATION AS YOU ARE THE SOLE DETERMINERS OF THE FACTS OF THIS CASE. NO TRANSCRIPT OF THE WITNESS TESTIMONY IN COURT WILL BE FURNISHED TO YOU AT THE TIME YOU BEGIN YOUR DELIBERATIONS. YOU ARE REQUIRED TO REMEMBER THE EVIDENCE AS YOU HEARD IT FROM THE 13 WITNESSES. YOU CAN SEE, THEREFORE, THAT IT IS IMPORTANT THAT YOU HEAR AND LISTEN TO ALL OF THE EVIDENCE. IF ANY WITNESS DOES NOT SPEAK LOUDLY OR CLEARLY ENOUGH TO BE HEARD BY YOU OR YOU DO NOT HEAR THE QUESTION OF COUNSEL, OR SEE AN EXHIBIT, PLEASE LET ME KNOW AND WE WILL SEE TO IT THAT THE WITNESS OR ATTORNEY REPEATS THE MATERIAL WHICH YOU DID NOT HEAR, OR WE MAKE THE EXHIBIT MORE VISIBLE. DURING THE TRIAL, YOU MAY HEAR CERTAIN AUDIO RECORDINGS. YOU WILL BE PROVIDED WITH TRANSCRIPTS OF SUCH RECORDINGS SOLELY TO ASSIST YOU IN DISCERNING THEIR CONTENT. I WILL INSTRUCT YOU THAT TO THE EXTENT YOU BELIEVE THERE IS ANY DIFFERENCE BETWEEN THE RECORDING AND ITS TRANSCRIPT, YOU ARE TO RELY ON THE RECORDING AS YOU HEAR IT. YOU MAY TAKE NOTES DURING THE TRIAL. OF COURSE IF YOU PREFER NOT TO TAKE NOTES, YOU DO NOT HAVE TO TAKE ANY. THE DECISION ABOUT WHETHER OR NOT TO TAKE NOTES IS A MATTER FOR EACH OF YOU INDIVIDUALLY TO DECIDE. IF YOU DO DECIDE TO TAKE NOTES, BE CAREFUL NOT TO GET SO INVOLVED IN NOTE TAKING THAT YOU BECOME DISTRACTED FROM THE ONGOING PROCEEDINGS. ADDITIONALLY, I CAUTION YOU THAT THERE MAY BE A TENDENCY TO ATTACH UNDUE IMPORTANCE TO MATTERS THAT ONE HAS WRITTEN DOWN. TESTIMONY THAT IS CONSIDERED UNIMPORTANT AT THE TIME PRESENTED, HOWEVER, AND THUS NOT WRITTEN DOWN, MAY TAKE ON GREATER IMPORTANCE LATER IN THE TRIAL IN LIGHT OF ALL THE EVIDENCE PRESENTED. THEREFORE, YOU ARE INSTRUCTED THAT YOUR NOTES ARE ONLY A TOOL TO AID YOUR OWN INDIVIDUAL MEMORY AND 14 YOU SHOULD NOT COMPARE YOUR NOTES WITH OTHER JURORS’ NOTES IN DETERMINING THE CONTENT OF ANY TESTIMONY OR IN EVALUATING THE IMPORTANCE OF ANY EVIDENCE. YOUR NOTES ARE NOT EVIDENCE, AND WILL BY NO MEANS BE A COMPLETE OUTLINE OF THE PROCEEDINGS OR A COMPREHENSIVE LIST OF THE HIGHLIGHTS OF THE TRIAL. ABOVE ALL, YOUR MEMORY SHOULD BE YOUR GREATEST ASSET WHEN IT COMES TIME TO DELIBERATE AND RENDER A DECISION IN THIS CASE. YOU MAY NOT TAKE YOUR NOTES BEYOND THE COURTROOM AND JURY ROOM VICINITY. BEFORE YOU LEAVE THIS AREA FOR ANY REASON, YOUR NOTES MUST BE LEFT IN THE JURY ROOM. WHEN YOU LEAVE AT NIGHT, YOUR NOTES WILL BE LOCKED UP SECURELY AND NOT READ BY ANYONE. AT THE END OF THE TRIAL, YOUR NOTES WILL BE COLLECTED AND DESTROYED. NO ONE, NOT THE LAWYERS, MY STAFF, NEWSPAPER REPORTERS, NOR I WILL BE PERMITTED TO READ YOUR NOTES. THEY ARE AND WILL REMAIN PRIVATE. FINALLY, THERE ARE THREE VERY IMPORTANT RULES ABOUT A CRIMINAL TRIAL WHICH YOU MUST KEEP IN MIND. FIRST, ANY DEFENDANT IS PRESUMED TO BE INNOCENT UNLESS PROVEN GUILTY. THE INDICTMENT BROUGHT BY THE GOVERNMENT AGAINST A DEFENDANT IS ONLY AN ACCUSATION, NOTHING MORE. IT IS NOT PROOF OF GUILT OR ANYTHING ELSE. A DEFENDANT THEREFORE STARTS OUT WITH A CLEAN SLATE WHICH YOU MUST RECOGNIZE. 15 SECOND, THE BURDEN OF PROOF IS ON THE GOVERNMENT FROM THE VERY BEGINNING TO THE VERY END OF THE TRIAL. A DEFENDANT HAS NO BURDEN OR REQUIREMENT TO PROVE HIS INNOCENCE, OR TO PRESENT ANY EVIDENCE, OR TO TESTIFY. SINCE A DEFENDANT HAS THE CONSTITUTIONAL RIGHT TO REMAIN SILENT, IN ARRIVING AT YOUR VERDICT THE LAW PROHIBITS YOU FROM GIVING ANY CONSIDERATION TO THE FACT THAT A DEFENDANT MAY NOT HAVE TESTIFIED. THIRD, THE GOVERNMENT MUST PROVE THE GUILT OF ANY DEFENDANT AS TO ANY CHARGE BEYOND A REASONABLE DOUBT. I WILL GIVE YOU FURTHER INSTRUCTIONS ON THIS POINT LATER, BUT BEAR IN MIND THAT IN THIS RESPECT A CRIMINAL CASE IS MUCH DIFFERENT FROM A CIVIL CASE. I CAUTION YOU TO USE THESE PRELIMINARY INSTRUCTIONS ONLY FOR THE PURPOSE OF UNDERSTANDING THE EVIDENCE AND TO NOT MAKE A DETERMINATION OF THE OUTCOME OF THIS CASE BEFORE ALL OF THE EVIDENCE IS PRESENTED. THE INSTRUCTIONS GIVEN TO YOU AT THE END OF THE PRESENTATION OF ALL OF THE EVIDENCE WILL FURTHER DETAIL THE LAW AND CLARIFY HOW YOU SHOULD APPLY THE LAW TO THE FACTS OF THIS CASE. AGAIN, AS I PREVIOUSLY TOLD YOU, YOU ARE TO DECIDE THIS CASE ONLY UPON CONSIDERATION OF THE FACTS OF THIS CASE AND THIS CASE ALONE. YOU MAY CONSIDER ONLY THE TESTIMONY AND EVIDENCE THAT YOU RECEIVE IN THIS COURTROOM DURING THE TRIAL OF THIS CASE. FOR THAT REASON, YOU MUST NOT READ ABOUT THE CASE IN THE NEWSPAPERS OR WATCH OR LISTEN TO TELEVISION OR RADIO REPORTS OF WHAT IS HAPPENING 16 HERE. YOU ARE NOT TO VISIT ANY SCENE OR CONDUCT ANY INDEPENDENT RESEARCH EITHER IN A LIBRARY OR ON THE INTERNET. YOU ARE TO DECIDE THE CASE ONLY UPON THE EVIDENCE PRESENTED AT TRIAL. IN OTHER WORDS, YOU SHOULD NOT CONSULT DICTIONARIES OR REFERENCE MATERIALS, SEARCH THE INTERNET, WEBSITES, BLOGS, OR USE ANY OTHER ELECTRONIC TOOLS TO OBTAIN INFORMATION ABOUT THIS CASE OR TO HELP YOU DECIDE THE CASE. PLEASE DO NOT TRY TO FIND OUT INFORMATION FROM ANY SOURCE OUTSIDE THE CONFINES OF THIS COURTROOM. NO GOOGLING! INFORMATION THAT YOU RECEIVE FROM OUTSIDE THE COURTROOM WOULD BE IMPROPER TO CONSIDER IN DELIBERATING ON THIS CASE AND ATTEMPTS BY PARTIES TO INFLUENCE YOUR DECISION OUTSIDE OF THE COURTROOM WOULD BE IN VIOLATION OF THE LAW. I KNOW THAT MANY OF YOU USE CELL PHONES, iPADS, iPHONES, ANDROIDS, BLACKBERRIES, THE INTERNET AND OTHER TOOLS OF TECHNOLOGY. YOU MUST ALSO NOT TALK TO ANYONE AT ANY TIME ABOUT THIS CASE OR USE THESE TOOLS TO COMMUNICATE ELECTRONICALLY WITH ANYONE ABOUT THE CASE. THIS INCLUDES YOUR FAMILY AND FRIENDS. YOU MAY NOT COMMUNICATE WITH ANYONE ABOUT THE CASE ON YOUR CELL PHONE, THROUGH EMAIL, BLACKBERRY, iPHONE, ANDROID, TEXT MESSAGING, OR ON TWITTER, THROUGH ANY BLOG OR WEBSITE, INCLUDING FACEBOOK, GOOGLE+, MY SPACE, LINKED IN, OR YOU-TUBE. YOU MAY NOT USE ANY SIMILAR TECHNOLOGY OF SOCIAL MEDIA, EVEN IF I HAVE NOT SPECIFICALLY MENTIONED IT HERE. I EXPECT YOU WILL INFORM ME AS SOON AS YOU BECOME 17 AWARE OF YOUR (OR ANOTHER JUROR'S) VIOLATION OF THESE INSTRUCTIONS, EVEN IF IT IS INADVERTENT. YOU ARE NOT TO CONCERN YOURSELF IN ANY WAY WITH THE SENTENCE WHICH A DEFENDANT MIGHT RECEIVE IF YOU SHOULD FIND HIM GUILTY. YOUR FUNCTION IS SOLELY TO DECIDE WHETHER THE GOVERNMENT HAS SUSTAINED OR CARRIED ITS BURDEN OF PROVING THE CHARGES TO YOU BEYOND A REASONABLE DOUBT. IF, AND ONLY IF, YOU FIND A DEFENDANT GUILTY OF A CHARGE WILL IT BECOME THE DUTY OF THE COURT TO PRONOUNCE SENTENCE AT A LATER DATE. THE ATTORNEYS ARE NOT PERMITTED TO DISCUSS THE CASE WITH YOU OTHER THAN IN THE COURTROOM IN THE COURSE OF THE TRIAL. THEY ARE NOT EVEN PERMITTED TO BE SOCIABLE WITH YOU OUTSIDE OF THE COURTROOM. SO IF YOU SEE THEM IN THE CORRIDORS OR ELEVATORS AND THEY DON’T SPEAK TO YOU, DON’T THINK THEY ARE TRYING TO SLIGHT OR SNUB YOU. THEY ARE SIMPLY OBSERVING THE RESTRICTIONS WHICH THE COURT PLACES ON THEM NOT TO TALK TO YOU UNLESS IT IS IN THE COURTROOM. FROM THIS POINT ON, DO NOT DISCUSS THIS CASE WITH ANYONE. ALSO, PLEASE DO NOT DISCUSS THIS CASE AMONG YOURSELVES UNTIL SUCH TIME AS YOU HAVE HEARD ALL OF THE EVIDENCE, THE CLOSING ARGUMENTS OF COUNSEL, AND THE FINAL INSTRUCTIONS ON THE LAW AS I WILL GIVE THEM TO YOU AT THE CONCLUSION OF THE CASE. 18 I PREVIOUSLY INTRODUCED MY COURTROOM STAFF TO YOU. PLEASE DO NOT ASK THE COURT STAFF ANY QUESTIONS ABOUT THE CASE DURING THE TRIAL, EXCEPT YOU MAY ASK MR. BABIK (OR ANOTHER COURT STAFF MEMBER) ABOUT PERSONAL MATTERS RELATING DIRECTLY TO YOUR SERVICE AS A JUROR, SUCH AS TRANSPORTATION ISSUES OR THE NEED FOR SUPPLIES IN THE JURY ROOM AND THE LIKE. MR. BABIK WILL PROVIDE YOU WITH CONTACT INFORMATION TO USE IF YOU HAVE AN EMERGENCY, AND FOR YOU TO USE TO OBTAIN INFORMATION IN THE EVENT OF BAD WEATHER OR A SCHEDULING CHANGE. WE WILL ALSO HAVE YOUR CONTACT INFORMATION IN THE EVENT WE NEED TO CONTACT THE JURY AFTER HOURS DUE TO A CHANGE IN SCHEDULE OR OTHER UNFORESEEN CIRCUMSTANCES. YOU WILL BE PROVIDED WATER AND COFFEE/TEA IN THE JURY ROOM. WE HAVE A REFRIGERATOR FOR YOUR USE, AND TWO RESTROOMS FOR YOUR USE. YOU MAY BRING ANY SOFT DRINK INTO THE COURTROOM, SO LONG AS IT HAS A MECHANICAL LID, SUCH AS A SCREW ON LID – NO FLIMSY, DISPOSABLE CUPS AND LIDS. FINALLY, THERE IS ONE QUESTION THAT WOULD BE ON MY MIND IF I WERE A JUROR; THAT IS, WHAT IF I HAVE A NEED FOR AN IMMEDIATE BREAK? NO PROBLEM – PLEASE SIMPLY MAKE THIS “BREAK” SIGN (DEMONSTRATE), AND I WILL CALL A BREAK AS SOON AS IS POSSIBLE. IF IT IS AN EMERGENCY, PLEASE JUST RAISE YOUR HAND. IF THIS HAPPENS, PLEASE DO NOT BE SELF-CONSCIOUS, AS WE HAVE ALL BEEN THERE. 19 NOW WE WILL HEAR FROM THE GOVERNMENT’S ATTORNEY WITH AN OPENING STATEMENT, AND I ASK THAT YOU GIVE COUNSEL YOUR CLOSE ATTENTION. ********** 20

=== Sample Criminal Final Instructions ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. PRICE MONTGOMERY JAMES PERRIN 2:14-cr-00205 Judge Mark R. Hornak COURT’S FINAL INSTRUCTIONS TO THE JURY – (NOVEMBER 9, 2018) MEMBERS OF THE JURY: ROLE OF JURY 1. MEMBERS OF THE JURY, YOU HAVE SEEN AND HEARD ALL THE EVIDENCE AND THE ARGUMENTS OF THE LAWYERS. NOW I WILL INSTRUCT YOU ON THE LAW. 2. YOU HAVE TWO DUTIES AS A JURY. YOUR FIRST DUTY IS TO DECIDE THE FACTS FROM THE EVIDENCE THAT YOU HAVE HEARD AND SEEN IN COURT DURING THIS TRIAL. THAT IS YOUR JOB AND YOURS ALONE. I PLAY NO PART IN FINDING THE FACTS. YOU SHOULD NOT TAKE ANYTHING I MAY HAVE SAID OR DONE DURING THE TRIAL AS INDICATING WHAT I THINK OF THE EVIDENCE OR WHAT I THINK ABOUT WHAT YOUR VERDICT SHOULD BE. 3. YOUR SECOND DUTY IS TO APPLY THE LAW THAT I GIVE YOU TO THE FACTS. MY ROLE NOW IS TO EXPLAIN TO YOU THE LEGAL PRINCIPLES THAT MUST GUIDE YOU IN YOUR DECISIONS. YOU MUST APPLY MY INSTRUCTIONS CAREFULLY. EACH OF THE INSTRUCTIONS IS IMPORTANT, AND YOU MUST APPLY ALL OF THEM. YOU MUST NOT SUBSTITUTE OR FOLLOW YOUR OWN NOTION OR OPINION ABOUT WHAT THE LAW IS OR OUGHT TO BE. YOU MUST APPLY THE LAW THAT I GIVE TO YOU, WHETHER YOU AGREE WITH IT OR NOT. 4. WHATEVER YOUR VERDICT, IT WILL HAVE TO BE UNANIMOUS WITH RESPECT TO EACH DEFENDANT, CHARGE BY CHARGE. ALL OF YOU WILL HAVE TO AGREE ON IT OR THERE WILL BE NO VERDICT. IN THE JURY ROOM YOU WILL DISCUSS THE CASE AMONG YOURSELVES, BUT ULTIMATELY EACH OF YOU WILL HAVE TO MAKE UP HIS OR HER OWN 2 MIND. THIS IS A RESPONSIBILITY THAT EACH OF YOU HAS AND THAT YOU CANNOT AVOID. 5. DURING YOUR DELIBERATIONS, YOU MUST NOT COMMUNICATE WITH OR PROVIDE ANY INFORMATION TO ANYONE BY ANY MEANS ABOUT THIS CASE. YOU MAY NOT USE ANY ELECTRONIC DEVICE OR MEDIA, SUCH AS THE TELEPHONE, A CELL PHONE, SMART PHONE, IPHONE, BLACKBERRY OR COMPUTER, THE INTERNET, ANY INTERNET SERVICE, ANY TEXT OR INSTANT MESSAGING SERVICE, ANY INTERNET CHAT ROOM, BLOG, OR WEBSITE SUCH AS FACEBOOK, MYSPACE, LINKEDIN, YOUTUBE OR TWITTER, TO COMMUNICATE TO ANYONE ANY INFORMATION ABOUT THIS CASE OR TO CONDUCT ANY RESEARCH ABOUT THIS CASE UNTIL I ACCEPT YOUR VERDICT. IN OTHER WORDS, YOU CANNOT TALK TO ANYONE ON THE PHONE, CORRESPOND WITH ANYONE, OR ELECTRONICALLY COMMUNICATE WITH ANYONE ABOUT THIS CASE. YOU CAN ONLY DISCUSS THE 3 CASE IN THE JURY ROOM WITH YOUR FELLOW JURORS DURING DELIBERATIONS. 6. YOU MAY NOT USE THESE ELECTRONIC MEANS TO INVESTIGATE OR COMMUNICATE ABOUT THE CASE BECAUSE IT IS IMPORTANT THAT YOU DECIDE THIS CASE BASED SOLELY ON THE EVIDENCE PRESENTED IN THIS COURTROOM. YOU ARE ONLY PERMITTED TO DISCUSS THE CASE WITH YOUR FELLOW JURORS DURING DELIBERATIONS BECAUSE THEY HAVE SEEN AND HEARD THE SAME EVIDENCE YOU HAVE. IN OUR JUDICIAL SYSTEM, IT IS IMPORTANT THAT YOU ARE NOT INFLUENCED BY ANYTHING OR ANYONE OUTSIDE OF THIS COURTROOM. 7. PERFORM THESE DUTIES FAIRLY AND IMPARTIALLY. DO NOT ALLOW SYMPATHY, PREJUDICE, FEAR, OR PUBLIC OPINION TO INFLUENCE YOU. YOU SHOULD ALSO NOT BE INFLUENCED BY ANY PERSON’S RACE, COLOR, RELIGION, NATIONAL ANCESTRY, GENDER, OCCUPATION, 4 ECONOMIC CIRCUMSTANCES, OR POSITION IN LIFE OR IN THE COMMUNITY. EVIDENCE 8. YOU MUST MAKE YOUR DECISION IN THIS CASE BASED ONLY ON THE EVIDENCE THAT YOU SAW AND HEARD IN THE COURTROOM. DO NOT LET RUMORS, SUSPICIONS, OR ANYTHING ELSE THAT YOU MAY HAVE SEEN OR HEARD OUTSIDE OF COURT INFLUENCE YOUR DECISION IN ANY WAY. 9. THE EVIDENCE FROM WHICH YOU ARE TO FIND THE FACTS CONSISTS OF THE FOLLOWING: (1) THE TESTIMONY OF THE WITNESSES; (2) DOCUMENTS AND OTHER THINGS RECEIVED AS EXHIBITS; AND (3) ANY FACT OR TESTIMONY THAT WAS STIPULATED; THAT IS, FORMALLY AGREED TO BY THE PARTIES. 10. THE FOLLOWING ARE NOT EVIDENCE: (1) THE INDICTMENTS; 5 (2) STATEMENTS AND ARGUMENTS OF THE LAWYERS FOR THE PARTIES IN THIS CASE; (3) QUESTIONS BY THE LAWYERS AND QUESTIONS THAT I MIGHT HAVE ASKED; (4) OBJECTIONS BY LAWYERS, INCLUDING OBJECTIONS IN WHICH THE LAWYERS STATED FACTS; (5) ANY TESTIMONY I STRUCK OR TOLD YOU TO DISREGARD; AND (6) ANYTHING YOU MAY HAVE SEEN OR HEARD ABOUT THIS CASE OUTSIDE THE COURTROOM. 11. YOU SHOULD USE YOUR COMMON SENSE IN WEIGHING THE EVIDENCE. CONSIDER IT IN LIGHT OF YOUR EVERYDAY EXPERIENCE WITH PEOPLE AND EVENTS, AND GIVE IT WHATEVER WEIGHT YOU BELIEVE IT DESERVES. IF YOUR EXPERIENCE AND COMMON SENSE TELLS YOU THAT CERTAIN EVIDENCE REASONABLY LEADS TO A CONCLUSION, YOU MAY REACH THAT CONCLUSION. 6 12. AS I TOLD YOU IN MY PRELIMINARY INSTRUCTIONS, THE RULES OF EVIDENCE CONTROL WHAT CAN BE RECEIVED INTO EVIDENCE. DURING THE TRIAL THE LAWYERS OBJECTED WHEN THEY THOUGHT THAT EVIDENCE WAS OFFERED THAT WAS NOT PERMITTED BY THE RULES OF EVIDENCE. THESE OBJECTIONS SIMPLY MEANT THAT THE LAWYERS WERE ASKING ME TO DECIDE WHETHER THE EVIDENCE SHOULD BE ALLOWED UNDER THE RULES. 13. YOU SHOULD NOT BE INFLUENCED BY THE FACT THAT AN OBJECTION WAS MADE. YOU SHOULD ALSO NOT BE INFLUENCED BY MY RULINGS ON OBJECTIONS OR ANY SIDEBAR CONFERENCES YOU MAY HAVE OVERHEARD. WHEN I OVERRULED AN OBJECTION, THE QUESTION WAS ANSWERED OR THE EXHIBIT WAS RECEIVED AS EVIDENCE, AND YOU SHOULD TREAT THAT TESTIMONY OR EXHIBIT LIKE ANY OTHER. WHEN I ALLOWED EVIDENCE (TESTIMONY OR EXHIBITS) FOR A LIMITED PURPOSE ONLY, I INSTRUCTED 7 YOU TO CONSIDER THAT EVIDENCE ONLY FOR THAT LIMITED PURPOSE AND YOU MUST DO THAT. 14. WHEN I SUSTAINED AN OBJECTION, THE QUESTION WAS NOT ANSWERED OR THE EXHIBIT WAS NOT RECEIVED AS EVIDENCE. YOU MUST DISREGARD THE QUESTION OR THE EXHIBIT ENTIRELY. DO NOT THINK ABOUT OR GUESS WHAT THE WITNESS MIGHT HAVE SAID IN ANSWER TO THE QUESTION; DO NOT THINK ABOUT OR GUESS WHAT THE EXHIBIT MIGHT HAVE SHOWN. SOMETIMES A WITNESS MAY HAVE ALREADY ANSWERED BEFORE A LAWYER OBJECTED OR BEFORE I RULED ON THE OBJECTION. IF THAT HAPPENED AND IF I SUSTAINED THE OBJECTION, YOU MUST DISREGARD THE ANSWER THAT WAS GIVEN. 15. ALSO, IF I ORDERED THAT SOME TESTIMONY OR OTHER EVIDENCE BE STRICKEN OR REMOVED FROM THE RECORD, YOU MUST DISREGARD THAT EVIDENCE. WHEN YOU ARE DECIDING THIS CASE, YOU MUST NOT CONSIDER OR 8 BE INFLUENCED IN ANY WAY BY THE TESTIMONY OR OTHER EVIDENCE THAT I TOLD YOU TO DISREGARD. 16. ALTHOUGH THE LAWYERS MAY HAVE CALLED YOUR ATTENTION TO CERTAIN FACTS OR FACTUAL CONCLUSIONS THAT THEY THOUGHT WERE IMPORTANT, WHAT THE LAWYERS SAID IS NOT EVIDENCE AND IS NOT BINDING ON YOU. IT IS YOUR OWN RECOLLECTION AND INTERPRETATION OF THE EVIDENCE THAT CONTROLS YOUR DECISION IN THIS CASE. ALSO, DO NOT ASSUME FROM ANYTHING I MAY HAVE DONE OR SAID DURING THE TRIAL THAT I HAVE ANY OPINION ABOUT ANY OF THE ISSUES IN THIS CASE OR ABOUT WHAT YOUR VERDICT SHOULD BE. DIRECT AND CIRCUMSTANTIAL EVIDENCE 17. TWO TYPES OF EVIDENCE MAY HAVE BEEN USED IN THIS TRIAL, “DIRECT EVIDENCE,” AND “CIRCUMSTANTIAL (OR INDIRECT) EVIDENCE.” YOU MAY USE BOTH TYPES OF EVIDENCE IN REACHING YOUR VERDICT. 9 18. “DIRECT EVIDENCE” IS SIMPLY EVIDENCE WHICH, IF BELIEVED, DIRECTLY PROVES A FACT. AN EXAMPLE OF “DIRECT EVIDENCE” OCCURS WHEN A WITNESS TESTIFIES ABOUT SOMETHING THE WITNESS KNOWS FROM HIS OR HER OWN SENSES — SOMETHING THE WITNESS HAS SEEN, TOUCHED, HEARD, OR SMELLED. 19. “CIRCUMSTANTIAL EVIDENCE” IS EVIDENCE WHICH, IF BELIEVED, INDIRECTLY PROVES A FACT. IT IS EVIDENCE THAT PROVES ONE OR MORE FACTS FROM WHICH YOU COULD REASONABLY FIND OR INFER THE EXISTENCE OF SOME OTHER FACT OR FACTS. A REASONABLE INFERENCE IS SIMPLY A DEDUCTION OR CONCLUSION THAT REASON, EXPERIENCE, AND COMMON SENSE LEAD YOU TO MAKE FROM THE EVIDENCE. A REASONABLE INFERENCE IS NOT A SUSPICION OR A GUESS. IT IS A REASONED, LOGICAL DECISION TO FIND THAT A DISPUTED FACT EXISTS ON THE BASIS OF ANOTHER FACT. 10 20. REMEMBER MY EARLIER EXAMPLE. IF SOMEONE WALKED INTO THE COURTROOM WEARING A WET RAINCOAT AND CARRYING A WET UMBRELLA, THAT WOULD BE CIRCUMSTANTIAL OR INDIRECT EVIDENCE FROM WHICH YOU COULD REASONABLY FIND OR CONCLUDE THAT IT WAS RAINING. YOU WOULD NOT HAVE TO FIND THAT IT WAS RAINING, BUT YOU COULD. 21. SOMETIMES DIFFERENT INFERENCES MAY BE DRAWN FROM THE SAME SET OF FACTS. THE PROSECUTION MAY ASK YOU TO DRAW ONE INFERENCE, AND THE DEFENSE MAY ASK YOU TO DRAW ANOTHER. YOU, AND YOU ALONE, MUST DECIDE WHAT REASONABLE INFERENCES, IF ANY, YOU WILL DRAW BASED ON ALL THE EVIDENCE AND YOUR REASON, EXPERIENCE AND COMMON SENSE. 22. YOU SHOULD CONSIDER ALL THE EVIDENCE THAT IS PRESENTED IN THIS TRIAL, DIRECT AND CIRCUMSTANTIAL. THE LAW MAKES NO DISTINCTION BETWEEN THE WEIGHT THAT YOU SHOULD GIVE TO EITHER DIRECT OR 11 CIRCUMSTANTIAL EVIDENCE. IT IS FOR YOU TO DECIDE HOW MUCH WEIGHT TO GIVE ANY EVIDENCE. CREDIBILITY OF WITNESSES 23. AS I STATED IN MY PRELIMINARY INSTRUCTIONS AT THE BEGINNING OF THE TRIAL, IN DECIDING WHAT THE FACTS ARE YOU MUST DECIDE WHAT TESTIMONY YOU BELIEVE AND WHAT TESTIMONY YOU DO NOT BELIEVE. YOU ARE THE SOLE JUDGES OF THE CREDIBILITY OF THE WITNESSES. CREDIBILITY REFERS TO WHETHER A WITNESS IS WORTHY OF BELIEF: WAS THE WITNESS TRUTHFUL? WAS THE WITNESS’S TESTIMONY ACCURATE? YOU MAY BELIEVE EVERYTHING A WITNESS SAYS, OR ONLY PART OF IT, OR NONE OF IT. 24. YOU MAY DECIDE WHETHER TO BELIEVE A WITNESS BASED ON HIS OR HER BEHAVIOR AND MANNER OF TESTIFYING, THE EXPLANATIONS THE WITNESS GAVE, AND ALL THE OTHER EVIDENCE IN THE CASE, JUST AS YOU WOULD IN ANY IMPORTANT MATTER WHERE YOU ARE 12 TRYING TO DECIDE IF A PERSON IS TRUTHFUL, STRAIGHTFORWARD, AND ACCURATE IN HIS OR HER RECOLLECTION. IN DECIDING THE QUESTION OF CREDIBILITY, REMEMBER TO USE YOUR COMMON SENSE, YOUR GOOD JUDGMENT, AND YOUR EXPERIENCE. 25. IN DECIDING WHAT TO BELIEVE, YOU MAY CONSIDER A NUMBER OF FACTORS. THESE INCLUDE: (1) THE OPPORTUNITY AND ABILITY OF THE WITNESS TO SEE OR HEAR OR KNOW THE THINGS ABOUT WHICH THE WITNESS TESTIFIED; (2) THE QUALITY OF THE WITNESS’S KNOWLEDGE, UNDERSTANDING, AND MEMORY; (3) THE WITNESS’S APPEARANCE, BEHAVIOR, AND MANNER WHILE TESTIFYING; (4) WHETHER THE WITNESS HAS AN INTEREST IN THE OUTCOME OF THE CASE OR ANY MOTIVE, BIAS, OR PREJUDICE; (5) ANY RELATION THE WITNESS MAY HAVE WITH A 13 PARTY IN THE CASE AND ANY EFFECT THE VERDICT MAY HAVE ON THE WITNESS; (6) WHETHER THE WITNESS SAID OR WROTE ANYTHING BEFORE TRIAL THAT WAS DIFFERENT FROM THE WITNESS’S TESTIMONY IN COURT; (7) WHETHER THE WITNESS’S TESTIMONY WAS CONSISTENT OR INCONSISTENT WITH OTHER EVIDENCE THAT YOU BELIEVE; AND (8) ANY OTHER FACTORS THAT BEAR ON WHETHER THE WITNESS SHOULD BE BELIEVED. 26. INCONSISTENCIES OR DISCREPANCIES IN A WITNESS’S TESTIMONY OR BETWEEN THE TESTIMONY OF DIFFERENT WITNESSES MAY OR MAY NOT CAUSE YOU TO DISBELIEVE A WITNESS’S TESTIMONY. TWO OR MORE PERSONS WITNESSING AN EVENT MAY SIMPLY SEE OR HEAR IT DIFFERENTLY. MISTAKEN RECOLLECTION, LIKE FAILURE TO RECALL, IS A COMMON HUMAN EXPERIENCE. IN WEIGHING THE EFFECT OF AN INCONSISTENCY, YOU SHOULD 14 ALSO CONSIDER WHETHER IT WAS ABOUT A MATTER OF IMPORTANCE OR AN INSIGNIFICANT DETAIL. YOU SHOULD ALSO CONSIDER WHETHER THE INCONSISTENCY WAS INNOCENT OR INTENTIONAL. 27. YOU ARE NOT REQUIRED TO ACCEPT TESTIMONY EVEN IF THE TESTIMONY WAS NOT CONTRADICTED AND THE WITNESS WAS NOT IMPEACHED. YOU MAY DECIDE THAT THE WITNESS IS NOT WORTHY OF BELIEF BECAUSE OF THE WITNESS’S BEARING AND DEMEANOR, OR BECAUSE OF THE INHERENT IMPROBABILITY OF THE TESTIMONY, OR FOR OTHER REASONS THAT ARE SUFFICIENT TO YOU. 28. AFTER YOU MAKE YOUR OWN JUDGMENT ABOUT THE BELIEVABILITY OF A WITNESS, YOU CAN THEN ATTACH TO THAT WITNESS’S TESTIMONY THE IMPORTANCE OR WEIGHT THAT YOU THINK IT DESERVES. 29. THE WEIGHT OF THE EVIDENCE TO PROVE A FACT DOES NOT NECESSARILY DEPEND ON THE NUMBER OF WITNESSES WHO TESTIFIED OR THE QUANTITY OF EVIDENCE 15 THAT WAS PRESENTED. WHAT IS MORE IMPORTANT THAN NUMBERS OR QUANTITY IS HOW BELIEVABLE THE WITNESSES WERE, AND HOW MUCH WEIGHT YOU THINK THEIR TESTIMONY DESERVES. 30. DURING THE TRIAL, EACH OF YOU WAS SUPPLIED WITH A NOTEBOOK FOR THE PURPOSE OF TAKING NOTES. YOU SHOULD REMEMBER THAT NOTES TAKEN BY ANY JUROR ARE NOT EVIDENCE IN THE CASE AND MUST NOT TAKE PRECEDENCE OVER YOUR INDEPENDENT RECOLLECTION OF THE TESTIMONY AND EVIDENCE PRESENTED DURING TRIAL. NOTES ARE ONLY AN AID TO YOUR RECOLLECTION AND THEY ARE NOT ENTITLED TO ANY GREATER WEIGHT THAN THAT WHICH THE EVIDENCE ACTUALLY IS. ANY NOTES TAKEN BY ANY JUROR CONCERNING THIS CASE SHOULD NOT BE DISCLOSED TO ANYONE OTHER THAN A FELLOW JUROR. 31. YOU WERE NOT OBLIGATED TO TAKE NOTES. IF YOU DID NOT TAKE NOTES YOU SHOULD NOT BE 16 INFLUENCED BY THE NOTES OF ANOTHER JUROR, BUT YOU SHOULD RELY UPON YOUR OWN RECOLLECTION OF THE EVIDENCE. 32. YOUR DECISION OF THE FACTS IN THIS CASE SHOULD NOT BE DETERMINED BY THE NUMBER OF WITNESSES TESTIFYING FOR OR AGAINST A PARTY. THE NUMBER OF WITNESSES WHO TESTIFY FOR ONE SIDE OR THE OTHER IS NOT CONTROLLING. THE WEIGHT OF THE EVIDENCE ALSO DOES NOT NECESSARILY DEPEND ON THE QUANTITY OF EVIDENCE PRESENTED. WHAT IS MORE IMPORTANT THAN NUMBERS OR QUANTITY IS HOW BELIEVEABLE THE WITNESSES WERE, AND HOW MUCH WEIGHT YOU THINK THEIR TESTIMONY DESERVES. YOU MUST CONSIDER ALL OF THE EVIDENCE AND DETERMINE WHAT THE FACTS ARE AND WHETHER THE GOVERNMENT HAS PROVEN ITS CASE AND ALL OF THE ELEMENTS THEREOF, AS I WILL DEFINE THEM, BEYOND A REASONABLE DOUBT. 17 33. IF YOU BELIEVE THAT A WITNESS KNOWINGLY TESTIFIED FALSELY CONCERNING ANY IMPORTANT MATTER, YOU MAY DISTRUST THE WITNESS’ TESTIMONY CONCERNING OTHER MATTERS. YOU MAY REJECT ALL OF THE TESTIMONY OR MAY ACCEPT SUCH PARTS OF THE TESTIMONY THAT YOU BELIEVE ARE TRUE AND GIVE IT SUCH WEIGHT AS YOU THINK IT DESERVES. 34. THE GOVERNMENT AND THE DEFENDANTS PRICE MONTGOMERY AND JAMES PERRIN ARE ALL EQUAL BEFORE THE LAW. NO GREATER OR LESSER WEIGHT SHOULD BE GIVEN TO THE TESTIMONY OF A WITNESS CONNECTED WITH EITHER PARTY. 35. ALTHOUGH THE PROSECUTION IS REQUIRED TO PROVE THE DEFENDANTS GUILTY BEYOND A REASONABLE DOUBT, THE PROSECUTION IS NOT REQUIRED TO PRESENT ALL POSSIBLE EVIDENCE RELATED TO THE CASE OR TO PRODUCE ALL POSSIBLE WITNESSES WHO MIGHT HAVE SOME KNOWLEDGE ABOUT THE FACTS OF THE CASE. IN 18 ADDITION, AS I HAVE EXPLAINED, THE DEFENDANTS ARE NOT REQUIRED TO PRESENT ANY EVIDENCE OR PRODUCE ANY WITNESSES AT ALL. PRESUMPTION OF INNOCENCE; BURDEN OF PROOF; REASONABLE DOUBT 36. THE DEFENDANTS HAVE PLEADED NOT GUILTY TO ALL OFFENSES CHARGED. THE DEFENDANTS ARE PRESUMED TO BE INNOCENT. THEY STARTED THE TRIAL WITH A CLEAN SLATE, WITH NO EVIDENCE AGAINST THEM. THE PRESUMPTION OF INNOCENCE STAYS WITH THE DEFENDANTS UNLESS AND UNTIL THE PROSECUTION HAS PRESENTED EVIDENCE THAT OVERCOMES THAT PRESUMPTION BY CONVINCING YOU THAT A DEFENDANT IS GUILTY OF AN OFFENSE CHARGED BEYOND A REASONABLE DOUBT. THE PRESUMPTION OF INNOCENCE REQUIRES THAT YOU FIND A DEFENDANT NOT GUILTY OF A SPECIFIC CHARGE, UNLESS YOU ARE SATISFIED THAT THE 19 PROSECUTION HAS PROVED GUILT BEYOND A REASONABLE DOUBT AS TO THAT CHARGE. 37. THE PRESUMPTION OF INNOCENCE MEANS THAT A DEFENDANT HAS NO BURDEN OR OBLIGATION TO PRESENT ANY EVIDENCE AT ALL OR TO PROVE THAT HE IS NOT GUILTY. THE BURDEN OR OBLIGATION OF PROOF IS ON THE PROSECUTION TO PROVE THAT A DEFENDANT IS GUILTY AND THIS BURDEN STAYS WITH THE PROSECUTION THROUGHOUT THE TRIAL. 38. PRICE MONTGOMERY AND JAMES PERRIN DID NOT TESTIFY IN THIS CASE. A DEFENDANT HAS AN ABSOLUTE CONSTITUTIONAL RIGHT NOT TO TESTIFY. THE BURDEN OF PROOF REMAINS WITH THE PROSECUTION THROUGHOUT THE ENTIRE TRIAL AND NEVER SHIFTS TO THE DEFENDANT. THE DEFENDANT IS NEVER REQUIRED TO PROVE THAT HE IS INNOCENT. YOU MUST NOT ATTACH ANY SIGNIFICANCE TO THE FACT THAT PRICE MONTGOMERY AND JAMES PERRIN DID NOT TESTIFY. YOU MUST NOT DRAW ANY ADVERSE 20 INFERENCE AGAINST THEM BECAUSE THEY DID NOT TAKE THE WITNESS STAND. DO NOT CONSIDER, FOR ANY REASON AT ALL, THE FACT THAT PRICE MONTGOMERY AND JAMES PERRIN DID NOT TESTIFY. DO NOT DISCUSS THAT FACT DURING YOUR DELIBERATIONS OR LET IT INFLUENCE YOUR DECISION IN ANY WAY. 39. IN ORDER FOR YOU TO FIND A DEFENDANT GUILTY OF AN OFFENSE CHARGED, THE PROSECUTION MUST CONVINCE YOU THAT THE DEFENDANT IS GUILTY BEYOND A REASONABLE DOUBT. THAT MEANS THAT THE PROSECUTION MUST PROVE EACH AND EVERY ELEMENT OF AN OFFENSE CHARGED BEYOND A REASONABLE DOUBT. A DEFENDANT MAY NOT BE CONVICTED BASED ON SUSPICION OR CONJECTURE, BUT ONLY ON EVIDENCE PROVING GUILT BEYOND A REASONABLE DOUBT. 40. PROOF BEYOND A REASONABLE DOUBT DOES NOT MEAN PROOF BEYOND ALL POSSIBLE DOUBT OR TO A MATHEMATICAL CERTAINTY. POSSIBLE DOUBTS OR DOUBTS 21 BASED ON CONJECTURE, SPECULATION, OR HUNCH ARE NOT REASONABLE DOUBTS. A REASONABLE DOUBT IS A FAIR DOUBT BASED ON REASON, LOGIC, COMMON SENSE, OR EXPERIENCE. IT IS A DOUBT THAT AN ORDINARY REASONABLE PERSON HAS AFTER CAREFULLY WEIGHING ALL OF THE EVIDENCE, AND IS A DOUBT OF THE SORT THAT WOULD CAUSE HIM OR HER TO HESITATE TO ACT IN MATTERS OF IMPORTANCE IN HIS OR HER OWN LIFE. IT MAY ARISE FROM THE EVIDENCE, OR FROM THE LACK OF EVIDENCE, OR FROM THE NATURE OF THE EVIDENCE. 41. IF, HAVING NOW HEARD ALL THE EVIDENCE, YOU ARE CONVINCED THAT THE PROSECUTION PROVED EACH AND EVERY ELEMENT OF AN OFFENSE CHARGED BEYOND A REASONABLE DOUBT, YOU SHOULD RETURN A VERDICT OF GUILTY FOR THAT OFFENSE. HOWEVER, IF YOU HAVE A REASONABLE DOUBT ABOUT ONE OR MORE OF THE ELEMENTS OF AN OFFENSE CHARGED, THEN YOU MUST RETURN A VERDICT OF NOT GUILTY OF THAT OFFENSE. 22 SEPARATE CONSIDERATION – SINGLE DEFENDANT CHARGED WITH MULTIPLE OFFENSES 42. THE DEFENDANTS ARE CHARGED WITH SEVERAL OFFENSES; EACH OFFENSE IS CHARGED IN A SEPARATE COUNT OF THE FORMAL DOCUMENT KNOWN AS THE SECOND SUPERSEDING INDICTMENT. FOR EASE OF REFERENCE, IN GIVING THESE INSTRUCTIONS, I WILL SIMPLY REFER TO THAT FORMAL DOCUMENT AS THE INDICTMENT. 43. THE NUMBER OF OFFENSES CHARGED IS NOT EVIDENCE OF GUILT, AND THIS SHOULD NOT INFLUENCE YOUR DECISION IN ANY WAY. YOU MUST SEPARATELY CONSIDER THE EVIDENCE THAT RELATES TO EACH OFFENSE, AND YOU MUST RETURN A SEPARATE VERDICT FOR EACH OFFENSE. FOR EACH OFFENSE CHARGED, YOU MUST DECIDE WHETHER THE PROSECUTION HAS PROVED BEYOND A REASONABLE DOUBT THAT A DEFENDANT IS GUILTY OF THAT PARTICULAR OFFENSE. 23 44. YOUR DECISION ON ONE OFFENSE, WHETHER GUILTY OR NOT GUILTY, SHOULD NOT INFLUENCE YOUR DECISION ON ANY OF THE OTHER OFFENSES CHARGED. EACH OFFENSE SHOULD BE CONSIDERED SEPARATELY. SEPARATE CONSIDERATION - MULTIPLE DEFENDANTS CHARGED WITH DIFFERENT OFFENSES 45. THE DEFENDANTS PRICE MONTGOMERY AND JAMES PERRIN ARE CHARGED WITH DIFFERENT OFFENSES. I WILL EXPLAIN TO YOU IN MORE DETAIL SHORTLY WHICH DEFENDANTS ARE CHARGED WITH WHICH OFFENSES. BEFORE I DO THAT, HOWEVER, I WANT TO EMPHASIZE SEVERAL THINGS. THE NUMBER OF OFFENSES CHARGED IS NOT EVIDENCE OF GUILT, AND THIS SHOULD NOT INFLUENCE YOUR DECISION IN ANY WAY. ALSO, IN OUR SYSTEM OF JUSTICE, GUILT OR INNOCENCE IS PERSONAL AND INDIVIDUAL. YOU MUST SEPARATELY CONSIDER THE EVIDENCE AGAINST EACH DEFENDANT ON EACH OFFENSE CHARGED, AND YOU MUST RETURN A SEPARATE VERDICT 24 FOR EACH DEFENDANT FOR EACH OFFENSE. FOR EACH DEFENDANT AND EACH OFFENSE, YOU MUST DECIDE WHETHER THE GOVERNMENT HAS PROVED BEYOND A REASONABLE DOUBT THAT A PARTICULAR DEFENDANT IS GUILTY OF A PARTICULAR OFFENSE. YOUR DECISION ON ANY ONE DEFENDANT OR ANY ONE OFFENSE, WHETHER GUILTY OR NOT GUILTY, SHOULD NOT INFLUENCE YOUR DECISION ON ANY OF THE OTHER DEFENDANTS OR OFFENSES. EACH OFFENSE AND EACH DEFENDANT SHOULD BE CONSIDERED SEPARATELY ROLE OF THE COURT IN RULING ON EVIDENCE 46. DO NOT ATTEMPT TO INTERPRET MY RULINGS ON EVIDENCE AS SOMEHOW INDICATING WHOM I BELIEVE SHOULD WIN OR LOSE THE CASE. UPON ALLOWING TESTIMONY OR OTHER EVIDENCE TO BE INTRODUCED OVER THE OBJECTION OF AN ATTORNEY, THE COURT DOES NOT INDICATE ANY OPINION AS TO THE WEIGHT OR EFFECT OF SUCH EVIDENCE. AS STATED BEFORE, YOU THE JURORS ARE 25 THE SOLE JUDGES OF THE CREDIBILITY OF ALL WITNESSES AND THE WEIGHT AND EFFECT OF ALL EVIDENCE. ROLE OF COUNSEL 47. IT IS THE DUTY OF THE ATTORNEY ON EACH SIDE OF THE CASE TO OBJECT WHEN THE OTHER SIDE OFFERS TESTIMONY OR OTHER EVIDENCE WHICH THE ATTORNEY BELIEVES IS NOT PROPERLY ADMISSIBLE. YOU SHOULD NOT SHOW PREJUDICE AGAINST AN ATTORNEY OR HIS CLIENT BECAUSE THE ATTORNEY HAS MADE OBJECTIONS. JURY RECOLLECTION CONTROLS 48. IF ANY REFERENCE BY THE COURT OR BY COUNSEL TO MATTERS OF TESTIMONY OR EXHIBITS DOES NOT COINCIDE WITH YOUR OWN RECOLLECTION OF THAT EVIDENCE, IT IS YOUR RECOLLECTION WHICH SHOULD CONTROL DURING YOUR DELIBERATIONS AND NOT THE STATEMENTS OF THE COURT OR OF COUNSEL. YOU ARE THE SOLE JUDGES OF THE EVIDENCE RECEIVED IN THIS CASE. 26 VERDICTS AS TO DEFENDANTS ONLY 49. YOU ARE HERE TO DETERMINE WHETHER THE PROSECUTION HAS PROVEN THE GUILT OF THE DEFENDANTS FOR THE CHARGES IN THE INDICTMENTS BEYOND A REASONABLE DOUBT. YOU ARE NOT CALLED UPON TO RETURN A VERDICT AS TO THE GUILT OR INNOCENCE OF ANY OTHER PERSON OR PERSONS. 50. SO, IF THE EVIDENCE IN THE CASE CONVINCES YOU BEYOND A REASONABLE DOUBT OF THE GUILT OF A DEFENDANT FOR ONE OR MORE CRIMES CHARGED IN THE INDICTMENT, YOU SHOULD SO FIND, EVEN THOUGH YOU MAY BELIEVE THAT ONE OR MORE OTHER UNINDICTED PERSONS ARE ALSO GUILTY OF SOME CRIME. BUT IF ANY REASONABLE DOUBT REMAINS IN YOUR MINDS AFTER IMPARTIAL CONSIDERATION OF ALL THE EVIDENCE IN THE CASE, IT IS YOUR DUTY TO FIND THAT DEFENDANT NOT GUILTY. 27 “ON OR ABOUT” / “AND” 51. YOU WILL NOTE THAT THE INDICTMENT CHARGES THAT THE OFFENSES WERE COMMITTED ON OR ABOUT OR IN OR AROUND A CERTAIN DATE OR ON OR ABOUT A CERTAIN DATE. THE PROSECUTION DOES NOT HAVE TO PROVE WITH CERTAINTY THE EXACT DATE OF THE ALLEGED OFFENSE. IT IS SUFFICIENT IF THE PROSECUTION PROVES BEYOND A REASONABLE DOUBT THAT THE OFFENSE WAS COMMITTED ON A DATE REASONABLY NEAR THE DATE ALLEGED. 52. I WANT TO INSTRUCT YOU REGARDING THE MEANING OF THE WORD “AND” WHEN IT IS USED IN STATUTES OR INDICTMENTS. 53. A GIVEN CRIMINAL STATUTE MAY PROHIBIT NOT MERELY ONE FORM OF ACTION BUT SEVERAL RELATED FORMS OF ACTION IN WHAT LAWYERS CALL “THE DISJUNCTIVE,” THAT IS, SEPARATED BY THE WORD “OR.” FOR EXAMPLE, THE FEDERAL DRUG STATUTE, 21 U.S.C. § 841(A)(1), MAKES IT ILLEGAL TO KNOWINGLY OR INTENTIONALLY 28 MANUFACTURE, DISTRIBUTE, OR DISPENSE, OR POSSESS WITH INTENT TO MANUFACTURE, DISTRIBUTE OR DISPENSE, A CONTROLLED SUBSTANCE. THIS STATUTE PROHIBITS SIX DIFFERENT ACTIONS: (1) MANUFACTURING, (2) DISTRIBUTING, (3) DISPENSING, (4) POSSESSING WITH INTENT TO MANUFACTURE, (5) POSSESSING WITH INTENT TO DISTRIBUTE, AND (6) POSSESSING WITH INTENT TO DISPENSE. ALL SIX OF THESE CRIMES ARE SEPARATED BY THE WORD “OR” IN THE STATUTE. 54. IT IS PERMISSIBLE FOR THE PROSECUTION TO CHARGE BOTH DISTRIBUTION AND POSSESSION WITH INTENT TO DISTRIBUTE, AND SEPARATE THEM WITH THE WORD “AND.” THIS, HOWEVER, DOES NOT MEAN THAT IF THE PROSECUTION DOES SO, IT MUST PROVE THAT THE DEFENDANT CONSPIRED TO VIOLATE THE DRUG STATUTE IN BOTH WAYS. IF ONLY ONE OF THOSE ALTERNATIVES IS PROVED BEYOND A REASONABLE DOUBT, THAT IS SUFFICIENT FOR CONVICTION. THUS, FOR EXAMPLE, IF THE 29 EVIDENCE PROVES THAT A DEFENDANT CONSPIRED TO POSSESS WITH THE INTENT TO DISTRIBUTE HEROIN, IT IS IRRELEVANT WHETHER OR NOT HE ALSO DISTRIBUTED IT. STIPULATED TESTIMONY 55. THE PARTIES HAVE AGREED WHAT CERTAIN WITNESSES’ TESTIMONY WOULD BE IF CALLED. YOU SHOULD CONSIDER THAT TESTIMONY IN THE SAME WAY AS IF IT HAD BEEN GIVEN HERE IN COURT BY THE WITNESSES. STIPULATION OF FACT 56. THE PARTIES HAVE AGREED THAT CERTAIN FACTS ARE TRUE. YOU SHOULD THEREFORE TREAT THOSE FACTS AS HAVING BEEN PROVED. YOU ARE NOT REQUIRED TO DO SO, HOWEVER, SINCE YOU ARE THE SOLE JUDGE OF THE FACTS. AUDIO/VIDEO RECORDS – NON-CONSENSUAL 57. DURING THE TRIAL, YOU HEARD RECORDINGS OF CONVERSATIONS WITH A DEFENDANT WHICH WERE MADE WITHOUT THE KNOWLEDGE OF THE PARTIES TO THE 30 CONVERSATIONS, BUT WITH THE CONSENT AND AUTHORIZATION OF A JUDGE. THESE RECORDINGS (SOMETIMES REFERRED TO AS WIRETAPS) WERE LAWFULLY OBTAINED. 58. THE USE OF THIS PROCEDURE TO GATHER EVIDENCE IS LAWFUL AND THE RECORDINGS MAY BE USED BY EITHER PARTY. AUDIO/VIDEO RECORDS – TRANSCRIPTS 59. YOU HAVE HEARD AUDIO RECORDINGS THAT WERE RECEIVED IN EVIDENCE, AND YOU WERE GIVEN WRITTEN TRANSCRIPTS OF THE RECORDINGS. 60. KEEP IN MIND THAT THE TRANSCRIPTS ARE NOT EVIDENCE. THEY WERE GIVEN TO YOU ONLY AS A GUIDE TO HELP YOU FOLLOW WHAT WAS BEING SAID. THE RECORDINGS THEMSELVES ARE THE EVIDENCE. IF YOU NOTICED ANY DIFFERENCES BETWEEN WHAT YOU HEARD ON THE RECORDINGS AND WHAT YOU READ IN THE TRANSCRIPTS, YOU MUST RELY ON WHAT YOU HEARD, NOT 31 WHAT YOU READ. AND IF YOU COULD NOT HEAR OR UNDERSTAND CERTAIN PARTS OF THE RECORDINGS YOU MUST IGNORE THE TRANSCRIPTS AS FAR AS THOSE PARTS ARE CONCERNED. THE TRANSCRIPTS NAME THE SPEAKERS. BUT REMEMBER, YOU MUST DECIDE WHO YOU ACTUALLY HEARD SPEAKING IN THE RECORDING. THE NAMES ON THE TRANSCRIPT WERE USED SIMPLY FOR YOUR CONVENIENCE. OPINION EVIDENCE – EXPERT WITNESSES 61. THE RULES OF EVIDENCE ORDINARILY DO NOT PERMIT WITNESSES TO STATE THEIR OWN OPINIONS ABOUT IMPORTANT QUESTIONS IN A TRIAL, BUT THERE ARE EXCEPTIONS TO THESE RULES. 62. IN THIS CASE, YOU HEARD TESTIMONY FROM STAN BRUE. BECAUSE OF HIS KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION IN THE FIELD OF THE ANALYSIS OF CELL PHONE RECORDS AND CELL TOWER DATA, STAN BRUE WAS PERMITTED TO OFFER OPINIONS IN THAT FIELD AND THE REASONS FOR THOSE OPINIONS. 32 63. IN THIS CASE, YOU ALSO HEARD TESTIMONY FROM ASHLEY PLATT AND SARAH BITTNER. BECAUSE OF THEIR KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION IN THE FIELD OF DNA ANALYSIS, THEY WERE PERMITTED TO OFFER OPINIONS IN THAT FIELD AND THE REASONS FOR THOSE OPINIONS. 64. IN THIS CASE, YOU ALSO HEARD TESTIMONY FROM JASON VERY. BECAUSE OF HIS KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION IN THE FIELD OF FIREARMS ANALYSIS, HE WAS PERMITTED TO OFFER OPINIONS IN THAT FIELD AND THE REASONS FOR THOSE OPINIONS. 65. IN THIS CASE, YOU ALSO HEARD TESTIMONY FROM DR. KENNETH CLARK. BECAUSE OF HIS KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION IN THE FIELD OF FORENSIC PATHOLOGY, HE WAS PERMITTED TO OFFER OPINIONS IN THAT FIELD AND THE REASONS FOR THOSE OPINIONS. 33 66. THE OPINIONS THESE WITNESSES STATE SHOULD RECEIVE WHATEVER WEIGHT YOU THINK APPROPRIATE, GIVEN ALL THE OTHER EVIDENCE IN THE CASE. IN WEIGHING THIS OPINION TESTIMONY YOU MAY CONSIDER THE WITNESS’S QUALIFICATIONS, THE REASONS FOR THE WITNESS’S OPINIONS, AND THE RELIABILITY OF THE INFORMATION SUPPORTING THE WITNESS’S OPINIONS, AS WELL AS THE OTHER FACTORS DISCUSSED IN THESE INSTRUCTIONS FOR WEIGHING THE TESTIMONY OF WITNESSES. YOU MAY DISREGARD THE OPINIONS ENTIRELY IF YOU DECIDE THAT THE WITNESS’S OPINIONS ARE NOT BASED ON SUFFICIENT KNOWLEDGE, SKILL, EXPERIENCE, TRAINING, OR EDUCATION. YOU MAY ALSO DISREGARD THE OPINIONS IF YOU CONCLUDE THAT THE REASONS GIVEN IN SUPPORT OF THE OPINIONS ARE NOT SOUND, OR IF YOU CONCLUDE THAT THE OPINIONS ARE NOT SUPPORTED BY THE FACTS SHOWN BY THE EVIDENCE, OR IF YOU THINK 34 THAT THE OPINIONS ARE OUTWEIGHED BY OTHER EVIDENCE. OPINION EVIDENCE -- LAY WITNESSES 67. AS I STATED, WITNESSES ARE NOT GENERALLY PERMITTED TO STATE THEIR PERSONAL OPINIONS ABOUT IMPORTANT QUESTIONS IN A TRIAL. HOWEVER, A WITNESS MAY BE ALLOWED TO TESTIFY TO HIS OR HER OPINION IF IT IS RATIONALLY BASED ON THE WITNESS’ PERCEPTION AND IS HELPFUL TO A CLEAR UNDERSTANDING OF THE WITNESS’ TESTIMONY OR TO THE DETERMINATION OF A FACT IN ISSUE. 68. IN THIS CASE, I PERMITTED SPECIAL AGENT MATTHEW TRUESDELL TO OFFER HIS OPINION AS TO CERTAIN MATTERS BASED ON HIS PERCEPTIONS. THE OPINION OF THIS WITNESS SHOULD RECEIVE WHATEVER WEIGHT YOU THINK APPROPRIATE, GIVEN ALL THE OTHER EVIDENCE IN THE CASE AND THE OTHER FACTORS DISCUSSED IN THESE INSTRUCTIONS FOR WEIGHING AND 35 CONSIDERING WHETHER TO BELIEVE THE TESTIMONY OF WITNESSES. SPECIFIC INVESTIGATION TECHNIQUES 69. WHEN THE IDENTITY OF THE PERSON WHO COMMITTED A CRIME IS IN QUESTION, THE PARTIES MAY INTRODUCE EVIDENCE TO TRY TO PROVE WHO COMMITTED THE CRIME. TO DO THIS, A PARTY MAY PRESENT A “KNOWN” SAMPLE OF A PERSON’S DNA, ONE THAT IS PROVED TO HAVE COME FROM THAT PERSON. THIS KNOWN DNA SAMPLE IS THEN COMPARED WITH ANY DNA BEING INTRODUCED TO PROVE WHO COMMITTED THE CRIME. IN THIS CASE, THE GOVERNMENT INTRODUCED EVIDENCE OF DNA MATTER WHICH PURPORTEDLY CAME FROM DEFENDANT PRICE MONTGOMERY. THE GOVERNMENT ALSO INTRODUCED EVIDENCE OF DNA MATTER WHICH WAS PURPORTEDLY OBTAINED FROM THE SURFACES OF A CELL PHONE. 70. IN THIS CASE YOU ALSO HEARD THE TESTIMONY OF A WITNESS WHO CLAIMS SPECIAL QUALIFICATION IN THE 36 FIELD OF DNA ANALYSIS. THE WITNESS WAS ALLOWED TO EXPRESS AN OPINION IN ORDER TO HELP YOU DECIDE WHETHER THE DISPUTED DNA MATTER CONNECTED TO THE CRIME IN QUESTION IS DEFENDANT PRICE MONTGOMERY’S DNA. YOU MAY THEREFORE CONSIDER THE WITNESS’S OPINION IN REACHING YOUR INDEPENDENT DECISION ON THIS ISSUE. 71. DURING THE TRIAL YOU MAY HAVE HEARD TESTIMONY OF WITNESSES AND ARGUMENT BY COUNSEL THAT THE PROSECUTION MAY NOT HAVE USED SPECIFIC INVESTIGATIVE TECHNIQUES AS TO A PARTICULAR MATTER. YOU MAY CONSIDER THESE FACTS IN DECIDING WHETHER THE PROSECUTION HAS MET ITS BURDEN OF PROOF, BECAUSE AS I TOLD YOU, YOU SHOULD LOOK TO ALL OF THE EVIDENCE OR LACK OF EVIDENCE IN DECIDING WHETHER THE DEFENDANT IS GUILTY. HOWEVER, THERE IS NO LEGAL REQUIREMENT THAT THE PROSECUTION USE ANY SPECIFIC 37 INVESTIGATIVE TECHNIQUES OR ALL POSSIBLE TECHNIQUES TO PROVE ITS CASE. 72. YOUR CONCERN, AS I HAVE SAID, IS TO DETERMINE WHETHER OR NOT THE EVIDENCE ACTUALLY ADMITTED IN THIS TRIAL PROVES THE DEFENDANT’S GUILT BEYOND A REASONABLE DOUBT. CREDIBILITY OF WITNESSES – LAW ENFORCEMENT OFFICERS 73. YOU HAVE HEARD THE TESTIMONY OF LAW ENFORCEMENT OFFICERS. THE FACT THAT A WITNESS IS EMPLOYED AS A LAW ENFORCEMENT OFFICER DOES NOT MEAN THAT HIS TESTIMONY NECESSARILY DESERVES MORE OR LESS CONSIDERATION OR GREATER OR LESSER WEIGHT THAN THAT OF ANY OTHER WITNESS. YOU MUST DECIDE, AFTER REVIEWING ALL THE EVIDENCE, WHETHER YOU BELIEVE THE TESTIMONY OF THE LAW ENFORCEMENT WITNESS AND HOW MUCH WEIGHT, IF ANY, IT DESERVES. 38 74. AT THE SAME TIME, IT IS QUITE LEGITIMATE FOR DEFENSE COUNSEL TO TRY TO ATTACK THE BELIEVEABILITY OF A LAW ENFORCEMENT WITNESS ON THE GROUND THAT HIS TESTIMONY MAY BE COLORED BY A PERSONAL OR PROFESSIONAL INTEREST IN THE OUTCOME OF THE CASE. 75. YOU MUST DECIDE, AFTER REVIEWING ALL THE EVIDENCE, WHETHER YOU BELIEVE THE TESTIMONY OF THE LAW ENFORCEMENT WITNESS OR WITNESSES AND HOW MUCH WEIGHT, IF ANY, IT DESERVES. CREDIBILITY OF WITNESSES – SAME OR RELATED OFFENSES, COOPERATING WITNESSES 76. YOU HAVE HEARD EVIDENCE THAT ANDRE AVENT AND DEFENDANT PRICE MONTGOMERY ARE ALLEGED CO- CONSPIRATORS IN THE ALLEGED MONEY LAUNDERING CONSPIRACY OFFENSE. MR. AVENT SAYS HE PARTICIPATED IN THE CRIME CHARGED, HAS MADE A PLEA AGREEMENT WITH THE PROSECUTION, AND MAY RECEIVE A BENEFIT FROM THE PROSECUTION IN EXCHANGE FOR TESTIFYING. 39 77. YOU HAVE ALSO HEARD THE TESTIMONY OF JEREMIAH PASHUTA WHO TESTIFIED THAT HE MADE PLEA AGREEMENTS WITH THE PROSECUTION AND HAS ALREADY RECEIVED A BENEFIT FROM THE PROSECUTION IN EXCHANGE FOR HIS TESTIMONY. 78. THE TESTIMONY OF THESE WITNESSES WAS RECEIVED IN EVIDENCE AND MAY BE CONSIDERED BY YOU. THE PROSECUTION IS PERMITTED TO PRESENT THE TESTIMONY OF SOMEONE WHO HAS REACHED A PLEA BARGAIN WITH THE PROSECUTION AND RECEIVED A BENEFIT FROM THE PROSECUTION IN EXCHANGE FOR HIS TESTIMONY, BUT YOU SHOULD CONSIDER THE TESTIMONY OF SUCH WITNESSES WITH GREAT CARE AND CAUTION. IN EVALUATING THEIR TESTIMONY, YOU SHOULD CONSIDER THIS FACTOR ALONG WITH THE OTHERS I HAVE CALLED TO YOUR ATTENTION. WHETHER OR NOT THEIR TESTIMONY MAY HAVE BEEN INFLUENCED BY THE PLEA AGREEMENT AND ALLEGED INVOLVEMENT IN THE CRIME CHARGED IS 40 FOR YOU TO DETERMINE. YOU MAY GIVE THEIR TESTIMONY SUCH WEIGHT AS YOU THINK IT DESERVES. 79. YOU MUST NOT CONSIDER A COCONSPIRATOR’S GUILTY PLEA AS ANY EVIDENCE OF THE GUILT OF EITHER OF THE DEFENDANTS. A WITNESS’S DECISION TO PLEAD GUILTY IS A PERSONAL DECISION ABOUT HIS/HER OWN GUILT. SUCH EVIDENCE IS OFFERED ONLY TO ALLOW YOU TO ASSESS THE CREDIBILITY OF THE WITNESSES; TO ELIMINATE ANY CONCERN THAT THE DEFENDANT HAS BEEN SINGLED OUT FOR PROSECUTION; AND TO EXPLAIN HOW THE WITNESSES CAME TO POSSESS DETAILED FIRST-HAND KNOWLEDGE OF THE EVENTS ABOUT WHICH THEY TESTIFIED. YOU MAY CONSIDER SUCH GUILTY PLEAS ONLY FOR THESE PURPOSES. IMPEACHMENT OF WITNESS – PRIOR INCONSISTENT STATEMENT FOR CREDIBILITY ONLY 80. YOU HAVE HEARD THE TESTIMONY OF CERTAIN WITNESSES. YOU HAVE ALSO HEARD THAT BEFORE THIS TRIAL THEY MADE STATEMENTS THAT MAY BE DIFFERENT 41 FROM THEIR TESTIMONY IN THIS TRIAL. IT IS UP TO YOU TO DETERMINE WHETHER THESE STATEMENTS WERE MADE AND WHETHER THEY WERE DIFFERENT FROM THE WITNESSES’ TESTIMONY IN THIS TRIAL. THESE EARLIER STATEMENTS WERE BROUGHT TO YOUR ATTENTION ONLY TO HELP YOU DECIDE WHETHER TO BELIEVE THE WITNESSES’ TESTIMONY HERE AT THIS TRIAL. YOU CANNOT USE IT AS PROOF OF THE TRUTH OF WHAT THE WITNESSES SAID IN THE EARLIER STATEMENTS. YOU CAN ONLY USE IT AS ONE WAY OF EVALUATING THE WITNESSES’ TESTIMONY IN THIS TRIAL. IMPEACHMENT OF WITNESS, PRIOR CONVICTION 81. YOU HEARD EVIDENCE THAT A WITNESS WAS PREVIOUSLY CONVICTED OF CRIMES. YOU MAY CONSIDER THIS EVIDENCE, ALONG WITH OTHER PERTINENT EVIDENCE, ONLY IN DECIDING WHETHER OR NOT TO BELIEVE SUCH A WITNESS, AND HOW MUCH WEIGHT TO GIVE TO THEIR TESTIMONY. 42 ELEMENTS OF THE OFFENSES SUMMARY OF THE INDICTMENT 82. I WILL NOW TELL YOU THE ESSENTIAL ELEMENTS OF THE CRIMES CHARGED AGAINST THE DEFENDANTS IN THE INDICTMENT. 83. PRICE MONTGOMERY IS CHARGED AT COUNT ONE WITH CONSPIRACY TO DISTRIBUTE AND POSSESS WITH INTENT TO DISTRIBUTE 1 KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN; AT COUNT TWO WITH POSSESSION WITH INTENT TO DISTRIBUTE 1 KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN; AT COUNT FOUR WITH POSSESSION OF A FIREARM BY A CONVICTED FELON; AT COUNT FIVE WITH POSSESSION OF A FIREARM IN FURTHERANCE OF A DRUG TRAFFICKING CRIME; AT COUNT SIX WITH CONSPIRACY TO LAUNDER MONETARY INSTRUMENTS; AT COUNT SEVEN WITH TAMPERING WITH A WITNESS BY KILLING A PERSON; AT 43 COUNT EIGHT WITH USING AND DISCHARGING A FIREARM IN RELATION TO A CRIME OF VIOLENCE RESULTING IN DEATH; AT COUNT NINE WITH TAMPERING WITH A WITNESS BY ATTEMPTING TO KILL A PERSON; AND AT COUNT TEN USING AND DISCHARGING A FIREARM IN RELATION TO A CRIME OF VIOLENCE. 84. JAMES PERRIN IS CHARGED AT COUNT ONE WITH CONSPIRACY TO DISTRIBUTE AND POSSESS WITH INTENT TO DISTRIBUTE 1 KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN; AT COUNT TWO WITH POSSESSION WITH INTENT TO DISTRIBUTE 1 KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN; AT COUNT THREE WITH POSSESSION OF FIREARM BY A CONVICTED FELON; AND AT COUNT FIVE WITH POSSESSION OF A FIREARM IN FURTHERANCE OF A DRUG TRAFFICKING CRIME. 44 85. AS I EXPLAINED AT THE BEGINNING OF TRIAL, AN INDICTMENT IS JUST THE FORMAL WAY OF SPECIFYING THE EXACT CRIMES A DEFENDANT IS ACCUSED OF COMMITTING. AN INDICTMENT IS SIMPLY A DESCRIPTION OF THE CHARGES AGAINST A DEFENDANT. IT IS AN ACCUSATION ONLY. AN INDICTMENT IS NOT EVIDENCE OF ANYTHING, AND YOU SHOULD NOT GIVE ANY WEIGHT TO THE FACT THAT PRICE MONTGOMERY OR JAMES PERRIN HAVE BEEN INDICTED IN MAKING YOUR DECISION IN THIS CASE. COUNT 1 OF THE INDICTMENT – MONTGOMERY AND PERRIN 86. COUNT 1 OF THE INDICTMENT CHARGES THAT, FROM IN AND AROUND APRIL 2013, AND CONTINUING THEREAFTER TO IN AND AROUND JUNE 2014, IN THE WESTERN DISTRICT OF PENNSYLVANIA AND ELSEWHERE, THE DEFENDANTS, PRICE MONTGOMERY AND JAMES PERRIN, DID KNOWINGLY, INTENTIONALLY, AND UNLAWFULLY CONSPIRE WITH ONE ANOTHER AND WITH PERSONS BOTH 45 KNOWN AND UNKNOWN TO THE GRAND JURY TO DISTRIBUTE AND POSSESS WITH INTENT TO DISTRIBUTE A QUANTITY OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN, A SCHEDULE I CONTROLLED SUBSTANCE, CONTRARY TO THE PROVISIONS OF TITLE 21, UNITED STATES CODE, SECTIONS 841(A)(1) AND 841(B)(1)(C). 87. COUNT 1 OF THE INDICTMENT FURTHER SPECIFIES THAT EACH OF THESE NAMED DEFENDANTS IS INDIVIDUALLY RESPONSIBLE FOR CONSPIRING TO DISTRIBUTE AND POSSESS WITH INTENT TO DISTRIBUTE ONE (1) KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN, A SCHEDULE I CONTROLLED SUBSTANCE, AS A RESULT OF HIS OWN CONDUCT AND THE CONDUCT OF CONSPIRATORS THAT WAS REASONABLY FORESEEABLE TO HIM, CONTRARY TO THE PROVISIONS OF TITLE 21, UNITED STATES CODE, SECTIONS 841(A)(1) AND 841(B)(1)(A)(I). 46 88. COUNT ONE CHARGES THAT THIS WAS ALL IN VIOLATION OF TITLE 21, UNITED STATES CODE, SECTION 846. 89. IT IS A FEDERAL CRIME FOR TWO OR MORE PERSONS TO AGREE OR CONSPIRE TO COMMIT ANY OFFENSE AGAINST THE UNITED STATES, EVEN IF THEY NEVER ACTUALLY ACHIEVE THEIR OBJECTIVE. A CONSPIRACY IS A KIND OF CRIMINAL PARTNERSHIP. 90. FOR YOU TO FIND ANY DEFENDANT GUILTY OF CONSPIRACY TO DISTRIBUTE OR POSSESS WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE, YOU MUST FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT EACH OF THE FOLLOWING THREE (3) ELEMENTS: 91. FIRST: THAT TWO OR MORE PERSONS AGREED TO DISTRIBUTE OR POSSESS WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE; 92. SECOND: THAT THE DEFENDANT WAS A PARTY TO OR MEMBER OF THAT AGREEMENT; AND 47 93. THIRD: THAT THE DEFENDANT JOINED THE AGREEMENT OR CONSPIRACY KNOWING OF ITS OBJECTIVE TO DISTRIBUTE OR POSSESS WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE AND INTENDING TO JOIN TOGETHER WITH AT LEAST ONE OTHER ALLEGED CONSPIRATOR TO ACHIEVE THAT OBJECTIVE; THAT IS, THAT THE DEFENDANT AND AT LEAST ONE OTHER ALLEGED CONSPIRATOR SHARED A UNITY OF PURPOSE AND THE INTENT TO ACHIEVE THAT OBJECTIVE. 94. YOU ARE INSTRUCTED THAT, AS A MATTER OF LAW, HEROIN IS A CONTROLLED SUBSTANCE, THAT IS, SOME KIND OF PROHIBITED DRUG. IT IS SOLELY FOR YOU, HOWEVER, TO DECIDE WHETHER THE PROSECUTION HAS PROVED BEYOND A REASONABLE DOUBT THAT A DEFENDANT CONSPIRED TO DISTRIBUTE OR TO POSSESS WITH INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE. 48 CONSPIRACY – EXISTENCE OF AN AGREEMENT 95. THE FIRST ELEMENT OF THE CRIME OF CONSPIRACY IS THE EXISTENCE OF AN AGREEMENT. THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT THAT TWO OR MORE PERSONS KNOWINGLY AND INTENTIONALLY ARRIVED AT A MUTUAL UNDERSTANDING OR AGREEMENT, EITHER SPOKEN OR UNSPOKEN, TO WORK TOGETHER TO ACHIEVE THE OVERALL OBJECTIVE OF THE CONSPIRACY. 96. THE PROSECUTION DOES NOT HAVE TO PROVE THE EXISTENCE OF A FORMAL OR WRITTEN AGREEMENT, OR AN EXPRESS ORAL AGREEMENT SPELLING OUT THE DETAILS OF THE UNDERSTANDING. THE PROSECUTION ALSO DOES NOT HAVE TO PROVE THAT ALL THE MEMBERS OF THE CONSPIRACY DIRECTLY MET, OR DISCUSSED BETWEEN THEMSELVES THEIR UNLAWFUL OBJECTIVE, OR AGREED TO ALL THE DETAILS, OR AGREED TO WHAT THE MEANS WERE BY WHICH THE OBJECTIVE WOULD BE ACCOMPLISHED. THE PROSECUTION IS NOT EVEN REQUIRED TO PROVE THAT ALL 49 THE PEOPLE NAMED IN THE INDICTMENT WERE, IN FACT, PARTIES TO THE AGREEMENT, OR THAT ALL MEMBERS OF THE ALLEGED CONSPIRACY WERE NAMED, OR THAT ALL MEMBERS OF THE CONSPIRACY ARE EVEN KNOWN. WHAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT IS THAT TWO OR MORE PERSONS IN SOME WAY OR MANNER ARRIVED AT SOME TYPE OF AGREEMENT, MUTUAL UNDERSTANDING, OR MEETING OF THE MINDS TO TRY TO ACCOMPLISH A COMMON AND UNLAWFUL OBJECTIVE. 97. YOU MAY CONSIDER BOTH DIRECT EVIDENCE AND CIRCUMSTANTIAL EVIDENCE IN DECIDING WHETHER THE PROSECUTION HAS PROVED BEYOND A REASONABLE DOUBT THAT AN AGREEMENT OR MUTUAL UNDERSTANDING EXISTED. YOU MAY FIND THE EXISTENCE OF A CONSPIRACY BASED ON REASONABLE INFERENCES DRAWN FROM THE ACTIONS AND STATEMENTS OF THE ALLEGED MEMBERS OF THE CONSPIRACY, FROM THE CIRCUMSTANCES SURROUNDING THE SCHEME, AND FROM EVIDENCE OF 50 RELATED FACTS AND CIRCUMSTANCES WHICH PROVE THAT THE ACTIVITIES OF THE PARTICIPANTS IN A CRIMINAL VENTURE COULD NOT HAVE BEEN CARRIED OUT EXCEPT AS THE RESULT OF A PRECONCEIVED AGREEMENT, SCHEME, OR UNDERSTANDING. CONSPIRACY – MEMBERSHIP IN THE AGREEMENT 98. IF YOU FIND THAT A CRIMINAL AGREEMENT OR CONSPIRACY EXISTED, THEN TO FIND A DEFENDANT GUILTY OF CONSPIRACY YOU MUST ALSO FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT KNOWINGLY AND INTENTIONALLY JOINED THAT AGREEMENT OR CONSPIRACY DURING ITS EXISTENCE. THE PROSECUTION MUST PROVE THAT THE DEFENDANT KNEW THE GOAL OR OBJECTIVE OF THE AGREEMENT OR CONSPIRACY AND VOLUNTARILY JOINED IT DURING ITS EXISTENCE, INTENDING TO ACHIEVE THE COMMON GOAL OR OBJECTIVE AND TO WORK TOGETHER 51 WITH THE OTHER ALLEGED CONSPIRATORS TOWARD THAT GOAL OR OBJECTIVE. 99. THE PROSECUTION NEED NOT PROVE THAT A DEFENDANT KNEW EVERYTHING ABOUT THE CONSPIRACY OR THAT A DEFENDANT KNEW EVERYONE INVOLVED IN IT, OR THAT A DEFENDANT WAS A MEMBER FROM THE BEGINNING. THE PROSECUTION ALSO DOES NOT HAVE TO PROVE THAT A DEFENDANT PLAYED A MAJOR OR SUBSTANTIAL ROLE IN THE CONSPIRACY. 100. YOU MAY CONSIDER BOTH DIRECT EVIDENCE AND CIRCUMSTANTIAL EVIDENCE IN DECIDING WHETHER A DEFENDANT JOINED THE CONSPIRACY, KNEW OF ITS CRIMINAL OBJECTIVE, AND INTENDED TO FURTHER THE OBJECTIVE. EVIDENCE WHICH SHOWS THAT A DEFENDANT ONLY KNEW ABOUT THE CONSPIRACY, OR ONLY KEPT “BAD COMPANY” BY ASSOCIATING WITH MEMBERS OF THE CONSPIRACY, OR WAS ONLY PRESENT WHEN IT WAS DISCUSSED OR WHEN A CRIME WAS COMMITTED, IS NOT 52 SUFFICIENT TO PROVE THAT A DEFENDANT WAS A MEMBER OF THE CONSPIRACY EVEN IF A DEFENDANT APPROVED OF WHAT WAS HAPPENING OR DID NOT OBJECT TO IT. LIKEWISE, EVIDENCE SHOWING THAT A DEFENDANT MAY HAVE DONE SOMETHING THAT HAPPENED TO HELP A CONSPIRACY DOES NOT NECESSARILY PROVE THAT THE DEFENDANT JOINED THE CONSPIRACY. YOU MAY, HOWEVER, CONSIDER THIS EVIDENCE, WITH ALL THE OTHER EVIDENCE, IN DECIDING WHETHER THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT A DEFENDANT JOINED THE CONSPIRACY. CONSPIRACY – SUCCESS IMMATERIAL 101. THE PROSECUTION IS NOT REQUIRED TO PROVE THAT ANY OF THE MEMBERS OF THE CONSPIRACY WERE SUCCESSFUL IN ACHIEVING ANY OR ALL OF THE OBJECTIVES OF THE CONSPIRACY. YOU MAY FIND A DEFENDANT GUILTY OF CONSPIRACY IF YOU FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THE ELEMENTS I 53 HAVE EXPLAINED, EVEN IF YOU FIND THAT THE PROSECUTION DID NOT PROVE THAT ANY OF THE CONSPIRATORS ACTUALLY COMMITTED ANY OTHER OFFENSE. CONSPIRACY IS A CRIMINAL OFFENSE SEPARATE FROM THE OFFENSE THAT WAS THE OBJECTIVE OF THE CONSPIRACY; CONSPIRACY IS COMPLETE WITHOUT THE COMMISSION OF THAT OFFENSE. CONSPIRACY – DURATION 102. A CONSPIRACY ENDS WHEN THE OBJECTIVES OF THE CONSPIRACY HAVE BEEN ACHIEVED OR WHEN ALL MEMBERS OF THE CONSPIRACY HAVE WITHDRAWN FROM IT. HOWEVER, A CONSPIRACY MAY BE A CONTINUING CONSPIRACY AND IF IT IS, IT LASTS UNTIL THERE IS SOME AFFIRMATIVE SHOWING THAT IT HAS ENDED OR THAT ALL ITS MEMBERS HAVE WITHDRAWN. A CONSPIRACY MAY BE A CONTINUING ONE IF THE AGREEMENT INCLUDES AN UNDERSTANDING THAT THE CONSPIRACY WILL CONTINUE OVER TIME. ALSO, A CONSPIRACY MAY HAVE A CONTINUING 54 PURPOSE OR OBJECTIVE AND, THEREFORE, MAY BE A CONTINUING CONSPIRACY. THE CONSPIRACY CHARGES AT COUNTS ONE AND SIX CHARGE THAT A CONSPIRACY EXISTED OVER A CERTAIN PERIOD OF TIME. A DEFENDANT NEED NOT HAVE PARTICIPATED IN THE CONSPIRACY FOR THE ENTIRE TIME PERIOD STATED AS TO THE CONSPIRACY IN ORDER TO BE CONSIDERED AS PART OF THE CONSPIRACY, SO LONG AS THEY WERE PART OF THE CONSPIRACY FOR SOME PORTION OF IT, NO MATTER THE LENGTH OF THAT PORTION. CONSPIRACY – ACTS AND STATEMENTS OF CO-CONSPIRATORS 103. EVIDENCE HAS BEEN ADMITTED IN THIS CASE THAT CERTAIN PERSONS, WHO ARE ALLEGED TO BE CO- CONSPIRATORS, DID OR SAID CERTAIN THINGS. THE ACTS OR STATEMENTS OF ANY MEMBER OF A CONSPIRACY ARE TREATED AS THE ACTS OR STATEMENTS OF ALL THE MEMBERS OF THE CONSPIRACY, IF THESE ACTS OR STATEMENTS WERE PERFORMED OR SPOKEN DURING THE 55 EXISTENCE OF THE CONSPIRACY AND TO FURTHER THE OBJECTIVES OF THE CONSPIRACY. 104. THEREFORE, YOU MAY CONSIDER AS EVIDENCE AGAINST A DEFENDANT ANY ACTS DONE OR STATEMENTS MADE BY ANY MEMBERS OF THE CONSPIRACY, DURING THE EXISTENCE OF AND TO FURTHER THE OBJECTIVES OF THE CONSPIRACY. YOU MAY CONSIDER THESE ACTS AND STATEMENTS EVEN IF THEY WERE DONE AND MADE IN THE DEFENDANT’S ABSENCE AND WITHOUT THE DEFENDANT’S KNOWLEDGE. 105. AS WITH ALL THE EVIDENCE PRESENTED IN THIS CASE, IT IS FOR YOU TO DECIDE WHETHER YOU BELIEVE THIS EVIDENCE AND HOW MUCH WEIGHT TO GIVE IT. ACTS DONE OR STATEMENTS MADE BY AN ALLEGED CO-CONSPIRATOR BEFORE A DEFENDANT JOINED THE ALLEGED CONSPIRACY MAY ALSO BE CONSIDERED BY YOU AS EVIDENCE AGAINST SUCH DEFENDANT. HOWEVER, ACTS DONE OR STATEMENTS MADE BEFORE THE ALLEGED CONSPIRACY BEGAN OR AFTER 56 IT ENDED MAY ONLY BE CONSIDERED BY YOU AS EVIDENCE AGAINST THE PERSON WHO PERFORMED THAT ACT OR MADE THAT STATEMENT. CONSPIRACY – SINGLE OR MULTIPLE CONSPIRACIES 106. THE INDICTMENT CHARGES THAT PRICE MONTGOMERY AND JAMES PERRIN WERE MEMBERS OF ONE SINGLE HEROIN DISTRIBUTION CONSPIRACY. WHETHER A SINGLE CONSPIRACY OR MULTIPLE CONSPIRACIES EXISTED IS A QUESTION OF FACT THAT YOU MUST DECIDE. 107. TO FIND A DEFENDANT GUILTY OF THE CONSPIRACY CHARGED IN THE INDICTMENT, YOU MUST FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS A MEMBER OF THAT CONSPIRACY. IF THE PROSECUTION FAILED TO PROVE THAT THE DEFENDANT WAS A MEMBER OF THE CONSPIRACY CHARGED IN THE INDICTMENT, THEN YOU MUST FIND THE DEFENDANT NOT GUILTY OF CONSPIRACY, EVEN IF YOU FIND THAT THERE WERE MULTIPLE CONSPIRACIES AND THAT THE 57 DEFENDANT WAS A MEMBER OF A SEPARATE CONSPIRACY OTHER THAN THE ONE CHARGED. HOWEVER, PROOF THAT THE DEFENDANT WAS A MEMBER OF SOME OTHER CONSPIRACY WOULD NOT PREVENT YOU FROM ALSO FINDING THE DEFENDANT GUILTY OF THE CONSPIRACY CHARGED IN THE INDICTMENT, IF YOU FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS A MEMBER OF THE CONSPIRACY CHARGED. 108. IN DECIDING WHETHER THERE WAS ONE SINGLE CONSPIRACY OR MORE THAN ONE CONSPIRACY, YOU SHOULD CONCENTRATE ON THE NATURE OF THE AGREEMENT PROVED BY THE EVIDENCE. TO PROVE A SINGLE CONSPIRACY, THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT THAT EACH OF THE ALLEGED MEMBERS OR CONSPIRATORS AGREED TO PARTICIPATE IN WHAT HE OR SHE KNEW OR SHOULD HAVE KNOWN WAS A SINGLE GROUP ACTIVITY DIRECTED TOWARD 58 A COMMON OBJECTIVE. THE PROSECUTION MUST PROVE THAT THERE WAS A SINGLE AGREEMENT ON AN OVERALL OBJECTIVE. 109. MULTIPLE CONSPIRACIES ARE SEPARATE AGREEMENTS OPERATING INDEPENDENTLY OF EACH OTHER. HOWEVER, A FINDING OF A MASTER CONSPIRACY THAT INCLUDES OTHER, SUB-SCHEMES DOES NOT CONSTITUTE A FINDING OF MULTIPLE, UNRELATED CONSPIRACIES. A SINGLE CONSPIRACY MAY EXIST WHEN THERE IS A CONTINUING CORE AGREEMENT THAT ATTRACTS DIFFERENT MEMBERS AT DIFFERENT TIMES AND WHICH INVOLVES DIFFERENT SUB-GROUPS COMMITTING ACTS IN FURTHERANCE OF AN OVERALL OBJECTIVE. 110. IN DETERMINING WHETHER A SERIES OF EVENTS CONSTITUTES A SINGLE CONSPIRACY OR SEPARATE AND UNRELATED CONSPIRACIES, YOU SHOULD CONSIDER WHETHER THERE WAS A COMMON GOAL AMONG THE ALLEGED CONSPIRATORS; WHETHER THERE EXISTED 59 COMMON OR SIMILAR METHODS; WHETHER AND TO WHAT EXTENT ALLEGED PARTICIPANTS OVERLAPPED IN THEIR VARIOUS DEALINGS; WHETHER AND TO WHAT EXTENT THE ACTIVITIES OF THE ALLEGED CONSPIRATORS WERE RELATED AND INTERDEPENDENT; HOW HELPFUL EACH ALLEGED COCONSPIRATOR’S CONTRIBUTIONS WERE TO THE GOALS OF THE OTHERS; AND WHETHER THE SCHEME CONTEMPLATED A CONTINUING OBJECTIVE THAT WOULD NOT BE ACHIEVED WITHOUT THE ONGOING COOPERATION OF THE CONSPIRATORS. 111. A SINGLE CONSPIRACY MAY EXIST EVEN IF ALL THE MEMBERS DID NOT KNOW EACH OTHER, OR NEVER SAT DOWN TOGETHER, OR DID NOT KNOW WHAT ROLES ALL THE OTHER MEMBERS WOULD PLAY. A SINGLE CONSPIRACY MAY EXIST EVEN IF DIFFERENT MEMBERS JOINED AT DIFFERENT TIMES, OR THE MEMBERSHIP OF THE CONSPIRACY CHANGED OVER TIME. SIMILARLY, THERE MAY BE A SINGLE CONSPIRACY EVEN THOUGH THERE WERE 60 DIFFERENT SUB-GROUPS OPERATING IN DIFFERENT PLACES, OR MANY ACTS OR TRANSACTIONS COMMITTED OVER A LONG PERIOD OF TIME. YOU MAY CONSIDER THESE THINGS IN DECIDING WHETHER THERE WAS ONE SINGLE CONSPIRACY OR MORE THAN ONE CONSPIRACY, BUT THEY ARE NOT NECESSARILY CONTROLLING. WHAT IS CONTROLLING IS WHETHER THE PROSECUTION HAS PROVED BEYOND A REASONABLE DOUBT THAT THERE WAS ONE OVERALL AGREEMENT ON A COMMON OBJECTIVE. COUNT 2 OF THE INDICTMENT – MONTGOMERY AND PERRIN 112. COUNT 2 OF THE INDICTMENT CHARGES THAT ON OR ABOUT JUNE 8, 2014, IN THE WESTERN DISTRICT OF PENNSYLVANIA AND ELSEWHERE, DEFENDANTS PRICE MONTGOMERY AND JAMES PERRIN DID KNOWINGLY, INTENTIONALLY, AND UNLAWFULLY ATTEMPT TO POSSESS WITH INTENT TO DISTRIBUTE AND DISTRIBUTE ONE KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE 61 CONTAINING A DETECTABLE AMOUNT OF HEROIN, A SCHEDULE I CONTROLLED SUBSTANCE, CONTRARY TO THE PROVISIONS OF TITLE 21, UNITED STATES CODE, SECTIONS 841(A)(1) AND 841(B)(1)(A)(I). 113. COUNT 2 OF THE INDICTMENT CHARGES DEFENDANTS MONTGOMERY AND PERRIN WITH POSSESSING 1 KILOGRAM OR MORE OF A MIXTURE CONTAINING A CONTROLLED SUBSTANCE, SPECIFICALLY HEROIN, WITH THE INTENT TO DISTRIBUTE THE CONTROLLED SUBSTANCE, WHICH IS A VIOLATION OF FEDERAL LAW. 114. IN ORDER TO FIND A DEFENDANT GUILTY OF POSSESSION WITH INTENT TO DISTRIBUTE OR DISTRIBUTION OF HEROIN, YOU MUST FIND THAT THE PROSECUTION PROVED EACH OF THE FOLLOWING ELEMENTS BEYOND A REASONABLE DOUBT: 115. FIRST: THAT THE DEFENDANT POSSESSED A MIXTURE OR SUBSTANCE CONTAINING A CONTROLLED SUBSTANCE; 62 116. SECOND: THAT THE DEFENDANT POSSESSED THE CONTROLLED SUBSTANCE KNOWINGLY OR INTENTIONALLY; 117. THIRD: THAT THE DEFENDANT INTENDED TO DISTRIBUTE OR DISTRIBUTED THE CONTROLLED SUBSTANCE; AND 118. FOURTH: THAT THE CONTROLLED SUBSTANCE WAS HEROIN. 119. TO “POSSESS” A CONTROLLED SUBSTANCE MEANS TO HAVE IT WITHIN A PERSON’S CONTROL. THE PROSECUTION DOES NOT HAVE TO PROVE THAT A DEFENDANT PHYSICALLY HELD THE CONTROLLED SUBSTANCE, THAT IS, HAD ACTUAL POSSESSION OF IT. AS LONG AS THE CONTROLLED SUBSTANCE WAS WITHIN A DEFENDANT’S CONTROL, HE POSSESSED IT. IF YOU FIND THAT A DEFENDANT EITHER HAD ACTUAL POSSESSION OF THE CONTROLLED SUBSTANCE OR HAD THE POWER AND INTENTION TO EXERCISE CONTROL OVER IT, EVEN THOUGH IT WAS NOT IN THE DEFENDANT’S PHYSICAL POSSESSION – 63 THAT IS, THAT THE DEFENDANT HAD THE ABILITY TO TAKE ACTUAL POSSESSION OF THE SUBSTANCE WHEN THE DEFENDANT WANTED TO DO SO – YOU MAY FIND THAT THE PROSECUTION HAS PROVED POSSESSION. POSSESSION MAY BE MOMENTARY OR FLEETING. PROOF OF OWNERSHIP OF THE CONTROLLED SUBSTANCE IS NOT REQUIRED. 120. THE LAW ALSO RECOGNIZES THAT POSSESSION MAY BE SOLE OR JOINT. IF ONE PERSON ALONE POSSESSES AN ITEM, THAT IS SOLE POSSESSION. HOWEVER, MORE THAN ONE PERSON MAY HAVE THE POWER AND INTENTION TO EXERCISE CONTROL OVER AN ITEM. THIS IS CALLED JOINT POSSESSION. IF YOU FIND THAT A DEFENDANT HAD SUCH POWER AND INTENTION, THEN HE POSSESSED THE ITEM EVEN IF HE POSSESSED IT JOINTLY WITH ANOTHER. 121. MERE PROXIMITY TO A CONTROLLED SUBSTANCE, OR MERE PRESENCE ON THE PROPERTY WHERE IT IS LOCATED, OR MERE ASSOCIATION WITH THE PERSON WHO DOES CONTROL THE CONTROLLED SUBSTANCE OR THE 64 PROPERTY IS NOT ENOUGH TO SUPPORT A FINDING OF POSSESSION. 122. “DISTRIBUTE,” AS USED IN THE OFFENSES CHARGED, MEANS TO DELIVER OR TO TRANSFER POSSESSION OR CONTROL OF A CONTROLLED SUBSTANCE FROM ONE PERSON TO ANOTHER. DISTRIBUTE INCLUDES THE SALE OF A CONTROLLED SUBSTANCE BY ONE PERSON TO ANOTHER, BUT DOES NOT REQUIRE A SALE. DISTRIBUTE ALSO INCLUDES A DELIVERY OR TRANSFER WITHOUT ANY FINANCIAL COMPENSATION, SUCH AS A GIFT OR TRADE. 123. IN ORDER TO FIND THAT A DEFENDANT GUILTY OF POSSESSION OF A CONTROLLED SUBSTANCE WITH INTENT TO DISTRIBUTE, AS CHARGED IN COUNT 2 OF THE INDICTMENT, YOU MUST FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT A DEFENDANT INTENDED TO DISTRIBUTE A MIXTURE OR SUBSTANCE CONTAINING A CONTROLLED SUBSTANCE. TO FIND THAT THE DEFENDANT HAD THE INTENT TO 65 DISTRIBUTE, YOU MUST FIND THAT THE DEFENDANT HAD IN MIND OR PLANNED IN SOME WAY TO DELIVER OR TRANSFER POSSESSION OR CONTROL OVER A CONTROLLED SUBSTANCE TO SOMEONE ELSE. 124. IN DETERMINING WHETHER A DEFENDANT HAD AN INTENT TO DISTRIBUTE, YOU MAY CONSIDER ALL THE FACTS AND CIRCUMSTANCES SHOWN BY THE EVIDENCE PRESENTED, INCLUDING THE DEFENDANT’S WORDS AND ACTIONS. IN DETERMINING A DEFENDANT’S INTENT TO DISTRIBUTE A CONTROLLED SUBSTANCE, YOU MAY ALSO CONSIDER, AMONG OTHER THINGS, THE QUANTITY AND PURITY OF THE CONTROLLED SUBSTANCE, THE MANNER IN WHICH THE CONTROLLED SUBSTANCE WAS PACKAGED, AND THE PRESENCE OR ABSENCE OF WEAPONS, LARGE AMOUNTS OF CASH, OR EQUIPMENT USED IN THE PROCESSING OR SALE OF CONTROLLED SUBSTANCES. 125. TO ACT KNOWINGLY, AS USED IN THE CHARGED OFFENSES, MEANS THAT A DEFENDANT WAS CONSCIOUS 66 AND AWARE THAT HE WAS ENGAGED IN THE ACTS CHARGED AND KNEW OF THE SURROUNDING FACTS AND CIRCUMSTANCES THAT MAKE OUT THE OFFENSES. KNOWINGLY DOES NOT REQUIRE THAT A DEFENDANT KNEW THAT THE ACTS CHARGED AND SURROUNDING FACTS AMOUNTED TO A CRIME. 126. TO ACT INTENTIONALLY, AS USED IN THE OFFENSES CHARGED, MEANS TO ACT DELIBERATELY AND NOT BY ACCIDENT. INTENTIONALLY DOES NOT REQUIRE THAT A DEFENDANT INTENDED TO VIOLATE THE LAW. 127. THE PHRASE “KNOWINGLY OR INTENTIONALLY,” AS USED IN THE CHARGED DRUG TRAFFICKING OFFENSES, REQUIRES THE PROSECUTION TO PROVE BEYOND A REASONABLE DOUBT THAT A DEFENDANT KNEW THAT WHAT HE DISTRIBUTED OR POSSESSED WITH INTENT TO DISTRIBUTE WAS A CONTROLLED SUBSTANCE. IN ADDITION, THE PROSECUTION MUST ALSO PROVE BEYOND A REASONABLE DOUBT THAT THE CONTROLLED SUBSTANCE 67 WAS, IN FACT, HEROIN AND THAT ANY SPECIFIED WEIGHT LEVELS OF 1 KILOGRAM OR MORE WERE MET. HOWEVER, AS LONG AS YOU FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT A DEFENDANT KNEW THAT WHAT HE DISTRIBUTED OR POSSESSED WITH INTENT TO DISTRIBUTE WAS A CONTROLLED SUBSTANCE, YOU NEED NOT FIND THAT HE KNEW THAT THE CONTROLLED SUBSTANCE WAS HEROIN OR THAT THE WEIGHT OF THE HEROIN WAS AT A SPECIFIED LEVEL. 128. IN DECIDING WHETHER A DEFENDANT ACTED “KNOWINGLY OR INTENTIONALLY,” YOU MAY CONSIDER EVIDENCE ABOUT WHAT THE DEFENDANT SAID, WHAT THE DEFENDANT DID AND FAILED TO DO, HOW THE DEFENDANT ACTED, AND ALL THE OTHER FACTS AND CIRCUMSTANCES SHOWN BY THE EVIDENCE THAT MAY PROVE WHAT WAS IN A DEFENDANT’S MIND AT THAT TIME. 68 COUNTS 3 (PERRIN) AND 4 (MONTGOMERY) OF THE INDICTMENT 129. COUNT 3 CHARGES JAMES PERRIN WITH POSSESSING A FIREARM ON OR ABOUT JUNE 8, 2014 AFTER HE WAS CONVICTED OF COMMITTING A FELONY CRIME PRIOR TO THAT DATE, IN VIOLATION OF 18 U.S.C. § 922(G)(1). 130. COUNT 4 CHARGES PRICE MONTGOMERY WITH POSSESSING A FIREARM ON OR ABOUT JUNE 8, 2014 AFTER HE WAS CONVICTED OF COMMITTING A FELONY CRIME PRIOR TO THAT DATE, IN VIOLATION OF 18 U.S.C. § 922(G)(1). 131. TO FIND A DEFENDANT GUILTY OF POSSESSING A FIREARM AFTER A PRIOR FELONY CONVICTION, THE PROSECUTION MUST PROVE EACH OF THE FOLLOWING THREE ELEMENTS BEYOND A REASONABLE DOUBT: 132. FIRST: THAT THE DEFENDANT WAS CONVICTED OF A FELONY, THAT IS, A CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR; 69 133. SECOND: THAT AFTER THIS CONVICTION, THE DEFENDANT KNOWINGLY POSSESSED A FIREARM AS CHARGED IN THE COUNT OF THE INDICTMENT; AND 134. THIRD: THAT THE DEFENDANT’S POSSESSION WAS IN OR AFFECTING INTERSTATE OR FOREIGN COMMERCE. 135. IN ORDER TO FIND A DEFENDANT GUILTY OF OFFENSE AT COUNTS 3 OR 4, YOU MUST FIND THAT THE PROSECUTION PROVED THAT BEFORE THE DATE THE DEFENDANT IS CHARGED WITH POSSESSING THE FIREARM, THE DEFENDANT HAD BEEN CONVICTED OF A CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR. 136. THE PROSECUTION AND DEFENDANT MONTGOMERY HAVE STIPULATED THAT, PRIOR TO JUNE 8, 2014, DEFENDANT MONTGOMERY HAD BEEN CONVICTED OF A CRIME PUNISHABLE BY A TERM OF IMPRISONMENT EXCEEDING ONE YEAR. 70 137. THE PROSECUTION AND DEFENDANT PERRIN HAVE STIPULATED THAT, PRIOR TO JUNE 8, 2014, DEFENDANT PERRIN HAD BEEN CONVICTED OF A CRIME PUNISHABLE BY A TERM OF IMPRISONMENT EXCEEDING ONE YEAR. 138. TO SATISFY THIS FIRST ELEMENT, YOU NEED ONLY FIND BEYOND A REASONABLE DOUBT THAT THE DEFENDANT WAS, IN FACT, CONVICTED OF THAT CRIME AND THAT THE CONVICTION WAS PRIOR TO THE DATE OF THE POSSESSION OF THE WEAPON AS CHARGED IN THE INDICTMENT. IT IS NOT NECESSARY THAT THE PROSECUTION PROVE THAT THE DEFENDANT KNEW THAT THE CRIME WAS PUNISHABLE BY IMPRISONMENT FOR MORE THAN ONE YEAR, NOR IS IT NECESSARY FOR THE DEFENDANT TO HAVE BEEN SENTENCED TO IMPRISONMENT FOR MORE THAN ONE YEAR. 139. YOU HEARD EVIDENCE AND/OR A STIPULATION THAT A DEFENDANT WAS CONVICTED PRIOR TO POSSESSING A FIREARM OF A FELONY CRIME PUNISHABLE BY IMPRISONMENT FOR A TERM EXCEEDING ONE YEAR. THIS 71 PRIOR CONVICTION WAS BROUGHT TO YOUR ATTENTION ONLY BECAUSE IT TENDS TO ESTABLISH ONE OF THE ELEMENTS OF THE CRIME OF FELON IN POSSESSION OF A FIREARM AS SET FORTH IN THE INDICTMENT. YOU ARE NOT TO SPECULATE AS TO THE NATURE OF THE CONVICTION. YOU MAY NOT CONSIDER THE PRIOR CONVICTION IN DECIDING WHETHER A DEFENDANT WAS IN KNOWING POSSESSION OF THE FIREARM THAT HE IS CHARGED WITH POSSESSING, WHICH IS A DISPUTED ISSUE IN THIS CASE. 140. THE FACT THAT A DEFENDANT WAS FOUND GUILTY OF ANOTHER CRIME ON ANOTHER OCCASION DOES NOT MEAN THAT HE COMMITTED THE FELON IN POSSESSION CRIME CHARGED IN THE INDICTMENT, AND YOU MUST NOT USE HIS GUILT OF THE PRIOR CRIME AS PROOF OF THE FELON IN POSSESSION CRIME CHARGED IN THE INDICTMENT EXCEPT FOR THE ONE ELEMENT OF THAT CRIME WHICH I HAVE MENTIONED. YOU MAY FIND THE DEFENDANT GUILTY OF THE FELON IN POSSESSION CRIME ONLY IF THE 72 PROSECUTION HAS PROVED BEYOND A REASONABLE DOUBT ALL OF THE ELEMENTS OF THAT CRIME. 141. AS PREVIOUSLY STATED, A FELON IN POSSESSION OF A FIREARM CRIME HAS AN ELEMENT THAT THE DEFENDANT’S POSSESSION WAS IN OR AFFECTING INTERSTATE OR FOREIGN COMMERCE. THIS MEANS THAT THE PROSECUTION MUST PROVE THAT, AT SOME TIME BEFORE THE DEFENDANT’S POSSESSION, THE FIREARM HAD TRAVELED IN INTERSTATE COMMERCE. IT IS SUFFICIENT FOR THE PROSECUTION TO SATISFY THIS ELEMENT BY PROVING THAT, AT ANY TIME PRIOR TO THE DATE CHARGED IN THE INDICTMENT, THE FIREARM CROSSED A STATE LINE OR THE UNITED STATES BORDER. THE PROSECUTION DOES NOT NEED TO PROVE THAT THE DEFENDANT HIMSELF CARRIED IT ACROSS A STATE LINE OR THE BORDER. THE PROSECUTION ALSO DOES NOT NEED TO PROVE WHO CARRIED IT ACROSS OR HOW IT WAS TRANSPORTED. IT IS ALSO NOT NECESSARY FOR THE PROSECUTION TO PROVE THAT THE DEFENDANT 73 KNEW THAT THE FIREARM HAD TRAVELED IN INTERSTATE COMMERCE. 142. IN THIS REGARD, THERE HAVE BEEN STIPULATIONS BETWEEN COUNSEL FOR DEFENDANT MONTGOMERY AND GOVERNMENT COUNSEL, AND BETWEEN COUNSEL FOR DEFENDANT PERRIN AND GOVERNMENT COUNSEL, THAT EACH OF THE SIXTEEN FIREARMS IN QUESTION WAS MANUFACTURED OUTSIDE PENNSYLVANIA IN A DIFFERENT STATE OR COUNTRY. YOU ARE PERMITTED TO INFER FROM THIS FACT THAT THE FIREARM TRAVELED IN INTERSTATE COMMERCE; HOWEVER, YOU ARE NOT REQUIRED TO DO SO. COUNT 5 OF THE INDICTMENT – MONTGOMERY AND PERRIN 143. COUNT 5 OF THE INDICTMENT CHARGES THAT, FROM IN AND AROUND JUNE 8, 2014, IN THE WESTERN DISTRICT OF PENNSYLVANIA, DEFENDANTS PRICE MONTGOMERY AND JAMES PERRIN DID KNOWINGLY AND UNLAWFULLY POSSESS A FIREARM IN FURTHERANCE OF A 74 DRUG TRAFFICKING CRIME FOR WHICH THEY MAY BE PROSECUTED IN A COURT OF THE UNITED STATES, THAT IS, THE CONSPIRACY CHARGED IN COUNT 1 OF THE INDICTMENT, IN VIOLATION OF TITLE 18, UNITED STATES CODE, SECTION 924(C)(1)(A)(I). 144. FOR ALL PURPOSES IN THIS CASE, THE TERM “FIREARM” MEANS ANY WEAPON WHICH WILL EXPEL, OR IS DESIGNED TO OR MAY READILY BE CONVERTED TO EXPEL, A PROJECTILE BY THE ACTION OF AN EXPLOSIVE. THE TERM INCLUDES THE FRAME OR RECEIVER OF ANY SUCH WEAPON. 145. TO “POSSESS” MEANS TO HAVE SOMETHING WITHIN A PERSON’S CONTROL. THE PROSECUTION DOES NOT HAVE TO PROVE THAT A DEFENDANT PHYSICALLY HELD THE FIREARM, THAT IS, HAD ACTUAL POSSESSION OF IT ON THE DATE ALLEGED IN THE INDICTMENT. AS LONG AS THE FIREARM WAS WITHIN A DEFENDANT’S CONTROL, HE POSSESSED IT. IF YOU FIND THAT A DEFENDANT EITHER HAD ACTUAL POSSESSION OF THE FIREARM OR HAD THE POWER 75 AND INTENTION TO EXERCISE CONTROL OVER IT, EVEN THOUGH IT WAS NOT IN THE DEFENDANT’S PHYSICAL POSSESSION – THAT IS, THAT THE DEFENDANT HAD THE ABILITY TO TAKE ACTUAL POSSESSION OF THE OBJECT WHEN THE DEFENDANT WANTED TO DO SO – YOU MAY FIND THAT THE PROSECUTION HAS PROVEN POSSESSION. 146. POSSESSION MAY BE MOMENTARY OR FLEETING. THE LAW ALSO RECOGNIZES THAT POSSESSION MAY BE SOLE OR JOINT. IF ONE PERSON ALONE POSSESSES A FIREARM, THAT IS SOLE POSSESSION. HOWEVER, MORE THAN ONE PERSON MAY HAVE THE POWER AND INTENTION TO EXERCISE CONTROL OVER A FIREARM. THIS IS CALLED JOINT POSSESSION. 147. IF YOU FIND THAT A DEFENDANT HAD SUCH POWER AND INTENTION, THEN HE POSSESSED THE FIREARM EVEN IF HE POSSESSED IT JOINTLY WITH ANOTHER. MERE PROXIMITY TO THE FIREARM OR MERE PRESENCE ON THE PROPERTY WHERE IT IS LOCATED OR MERE ASSOCIATION WITH THE 76 PERSON WHO DOES CONTROL THE FIREARM OR THE PROPERTY, IS INSUFFICIENT TO SUPPORT A FINDING OF POSSESSION. 148. PROOF OF OWNERSHIP OF THE FIREARM IS NOT REQUIRED. THE PROSECUTION MUST PROVE THAT A DEFENDANT KNOWINGLY POSSESSED A FIREARM. THIS MEANS THAT A DEFENDANT POSSESSED A FIREARM PURPOSELY AND VOLUNTARILY, AND NOT BY ACCIDENT OR MISTAKE. IT ALSO MEANS THAT THE DEFENDANT KNEW THE OBJECT WAS A FIREARM. 149. COUNT 5 OF THE INDICTMENT CHARGES THE DEFENDANTS WITH POSSESSING A FIREARM IN FURTHERANCE OF A DRUG TRAFFICKING CRIME, WHICH IS A VIOLATION OF FEDERAL LAW. THE OFFENSES ALLEGED IN COUNTS 1 AND 2 ARE BOTH DRUG TRAFFICKING CRIMES. 150. IN ORDER TO FIND A DEFENDANT GUILTY OF THIS OFFENSE, YOU MUST FIND THAT THE PROSECUTION PROVED 77 EACH OF THE FOLLOWING TWO ELEMENTS BEYOND A REASONABLE DOUBT: 151. FIRST: THAT THE DEFENDANT COMMITTED EITHER: (A) THE CRIME CHARGED AT COUNT ONE OF THE INDICTMENT, THAT IS CONSPIRACY TO DISTRIBUTE AND POSSESS WITH INTENT TO DISTRIBUTE 1 KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN, OR (B) THE CRIME CHARGED AT COUNT TWO OF THE INDICTMENT, THAT IS POSSESSION WITH INTENT TO DISTRIBUTE 1 KILOGRAM OR MORE OF A MIXTURE AND SUBSTANCE CONTAINING A DETECTABLE AMOUNT OF HEROIN, AND 152. SECOND: THAT THE DEFENDANT KNOWINGLY POSSESSED A FIREARM IN FURTHERANCE OF THIS CRIME. IF YOU FIND THE DEFENDANT POSSESSED THE FIREARM, YOU MUST CONSIDER WHETHER THE POSSESSION WAS IN FURTHERANCE OF THE UNDERLYING DRUG TRAFFICKING CRIME. 78 153. YOU DO NOT HAVE TO AGREE ON A SPECIFIC FIREARM POSSESSED BY A DEFENDANT AS LONG AS YOU UNANIMOUSLY AGREE THAT THE DEFENDANT POSSESSED SOME FIREARM IN FURTHERANCE OF THE UNDERLYING DRUG TRAFFICKING CRIME. IF YOU FIND THAT THE DEFENDANT POSSESSED A FIREARM, YOU MUST CONSIDER WHETHER THE POSSESSION WAS IN FURTHERANCE OF THE UNDERLYING DRUG TRAFFICKING CRIME. 154. POSSESSION “IN FURTHERANCE OF” MEANS FOR THE PURPOSE OF ASSISTING IN, PROMOTING, ACCOMPLISHING, ADVANCING, OR ACHIEVING THE GOAL OR OBJECTIVE OF THE UNDERLYING DRUG TRAFFICKING CRIME. MERE PRESENCE OF A FIREARM AT THE SCENE IS NOT ENOUGH TO FIND POSSESSION IN FURTHERANCE OF A DRUG TRAFFICKING CRIME. THE FIREARM’S PRESENCE MAY BE COINCIDENTAL OR ENTIRELY UNRELATED TO THE UNDERLYING CRIME. SOME FACTORS THAT MAY HELP YOU DETERMINE WHETHER POSSESSION OF A FIREARM FURTHERS 79 A DRUG TRAFFICKING CRIME INCLUDE, BUT ARE NOT LIMITED, TO: 1. THE TYPE OF CRIMINAL ACTIVITY THAT IS BEING CONDUCTED; 2. ACCESSIBILITY OF THE FIREARM; 3. THE TYPE OF FIREARM; 4. WHETHER THE FIREARM IS STOLEN; 5. WHETHER THE DEFENDANT POSSESSED THE FIREARM LEGALLY OR ILLEGALLY; 6. WHETHER THE FIREARM WAS LOADED; 7. THE TIME AND CIRCUMSTANCES UNDER WHICH THE FIREARM WAS FOUND; AND 8. PROXIMITY TO DRUGS OR DRUG PROFITS. CO-CONSPIRATOR LIABILITY FOR FIREARM POSSESSION 155. THE PROSECUTION MAY ESTABLISH A DEFENDANT’S GUILT FOR A PARTICULAR CRIME, SUCH AS POSSESSION OF A FIREARM IN FURTHERANCE OF A DRUG TRAFFICKING CRIME, BY PROVING THAT THE DEFENDANT 80 PERSONALLY COMMITTED THE OFFENSE. THE PROSECUTION MAY ALSO ESTABLISH A DEFENDANT’S GUILT FOR AN OFFENSE BASED ON THE LEGAL RULE THAT EACH MEMBER OF A CONSPIRACY IS RESPONSIBLE FOR CRIMES AND OTHER ACTS COMMITTED BY THE OTHER MEMBERS, AS LONG AS THOSE CRIMES AND ACTS WERE COMMITTED TO HELP FURTHER OR ACHIEVE THE OBJECTIVE OF THE CONSPIRACY AND WERE REASONABLY FORESEEABLE TO THE DEFENDANT AS A NECESSARY OR NATURAL CONSEQUENCE OF THE AGREEMENT. IN OTHER WORDS, UNDER CERTAIN CIRCUMSTANCES THE ACT OF ONE CONSPIRATOR MAY BE TREATED AS THE ACT OF ALL. THIS MEANS THAT ALL THE CONSPIRATORS MAY BE CONVICTED OF A CRIME COMMITTED BY ANY ONE OR MORE OF THEM EVEN THOUGH THEY DID NOT ALL PERSONALLY PARTICIPATE IN THAT CRIME THEMSELVES. 156. FOR EXAMPLE, FOR YOU TO FIND A DEFENDANT GUILTY OF POSSESSING A FIREARM IN FURTHERANCE OF THE 81 DRUG TRAFFICKING CRIME CHARGED IN COUNT ONE, BASED ON THIS LEGAL RULE, YOU MUST FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT EACH OF THE FOLLOWING 4 REQUIREMENTS: 157. FIRST: THAT THE DEFENDANT WAS A MEMBER OF THE CONSPIRACY CHARGED IN COUNT 1 OF THE INDICTMENT; 158. SECOND: THAT WHILE THE DEFENDANT WAS A MEMBER OF THE CONSPIRACY, ONE OR MORE OF THE OTHER MEMBERS OF THE CONSPIRACY POSSESSED A FIREARM IN FURTHERANCE OF THE CONSPIRACY; 159. THIRD: THAT THE OTHER MEMBERS OF THE CONSPIRACY COMMITTED THIS OFFENSE WITHIN THE SCOPE OF THE UNLAWFUL AGREEMENT AND TO HELP FURTHER OR ACHIEVE THE OBJECTIVES OF THE CONSPIRACY; AND 160. FOURTH: THAT THIS OFFENSE WAS REASONABLY FORESEEABLE TO OR REASONABLY ANTICIPATED BY THE 82 DEFENDANT AS A NECESSARY OR NATURAL CONSEQUENCE OF THE UNLAWFUL AGREEMENT. 161. THE PROSECUTION DOES NOT HAVE TO PROVE THAT THE DEFENDANT SPECIFICALLY AGREED OR KNEW THAT THE POSSESSION OF A FIREARM IN FURTHERANCE OF THE CONSPIRACY OFFENSE WOULD BE COMMITTED. HOWEVER, THE PROSECUTION MUST PROVE THAT THAT OFFENSE WAS REASONABLY FORESEEABLE TO THE DEFENDANT AS A MEMBER OF THE CONSPIRACY AND WITHIN THE SCOPE OF THE AGREEMENT AS THE DEFENDANT UNDERSTOOD IT. COUNT 6 OF THE INDICTMENT -- MONTGOMERY 162. COUNT 6 OF THE INDICTMENT CHARGES THAT, FROM IN AND AROUND MARCH 2012 TO ON OR ABOUT JUNE 1, 2014, IN THE WESTERN DISTRICT OF PENNSYLVANIA AND ELSEWHERE, DEFENDANT PRICE MONTGOMERY DID KNOWINGLY, INTENTIONALLY, AND UNLAWFULLY CONSPIRE, WITH ANDRE AVENT, CHARLES COOK AND WITH 83 PERSONS BOTH KNOWN AND UNKNOWN TO THE GRAND JURY, TO COMMIT MONEY LAUNDERING, THAT IS TO CONDUCT AND ATTEMPT TO CONDUCT FINANCIAL TRANSACTIONS AFFECTING INTERSTATE COMMERCE, THAT IS, (1) THE EXECUTION OF, AND PAYMENTS IN FURTHERANCE OF, A LEASE-TO-PURCHASE AGREEMENT FOR 414 WILLIAM STREET, PITTSBURGH, PENNSYLVANIA 15211, (2) THE EXECUTION OF, AND PAYMENTS IN FURTHERANCE OF, A LEASE-TO-PURCHASE AGREEMENT FOR 3208 LENOX OVAL, PITTSBURGH, PENNSYLVANIA 15237; (3) THE PURCHASE OF A 2011 AUDI Q5, AND (4) THE PURCHASE OF A 2011 BMW 750LXI, ALL INVOLVING THE PROCEEDS OF SPECIFIED UNLAWFUL ACTIVITY, THAT IS, ILLEGAL HEROIN TRAFFICKING, IN VIOLATION OF 21 U.S.C. §§ 841 AND 846, KNOWING THAT THE TRANSACTIONS WERE DESIGNED, IN WHOLE OR IN PART, TO CONCEAL AND DISGUISE THE NATURE, LOCATION, SOURCE, OWNERSHIP, AND CONTROL OF THE PROCEEDS OF THE SPECIFIED UNLAWFUL ACTIVITY, AND KNOWING THAT THE 84 PROPERTY INVOLVED IN THE FINANCIAL TRANSACTIONS REPRESENTED THE PROCEEDS OF SOME FORM OF UNLAWFUL ACTIVITY, CONTRARY TO THE PROVISIONS OF TITLE 18, UNITED STATES CODE, SECTION 1956(A)(1)(B)(I), AND IN VIOLATION OF TITLE 18, UNITED STATES CODE, SECTION 1956(H). MONEY LAUNDERING 163. TO FIND MR. MONTGOMERY GUILTY OF THE CONSPIRACY CHARGED IN COUNT 6 OF THE INDICTMENT, YOU MUST FIND THAT THE PROSECUTION PROVED EACH OF THE FOLLOWING THREE ELEMENTS BEYOND A REASONABLE DOUBT: 164. FIRST: THAT TWO OR MORE PEOPLE AGREED TO LAUNDER MONEY AS CHARGED IN THE INDICTMENT; THAT IS THEY AGREED TO CONDUCT OR ATTEMPT TO CONDUCT A FINANCIAL TRANSACTION THAT WOULD AFFECT INTERSTATE COMMERCE, WITH THE PROCEEDS OF A SPECIFIED UNLAWFUL ACTIVITY, WITH KNOWLEDGE THAT 85 THE PROCEEDS INVOLVED SOME FORM OF UNLAWFUL ACTIVITY, AND WITH KNOWLEDGE THAT THE TRANSACTION WAS DESIGNED IN WHOLE OR IN PART TO CONCEAL OR DISGUISE THE NATURE, LOCATION, SOURCE, OWNERSHIP OR CONTROL OF THE PROCEEDS; 165. SECOND: THAT THE DEFENDANT WAS A PARTY TO, OR MEMBER OF, THE AGREEMENT; AND 166. THIRD: THAT THE DEFENDANT JOINED THE AGREEMENT OR CONSPIRACY KNOWING OF ITS OBJECTIVE TO LAUNDER MONEY AS CHARGED IN THE INDICTMENT AND INTENDING TO JOIN TOGETHER WITH AT LEAST ONE OTHER ALLEGED CONSPIRATOR TO ACHIEVE THAT OBJECTIVE; THAT IS, THAT THE DEFENDANT AND AT LEAST ONE OTHER ALLEGED CONSPIRATOR SHARED A UNITY OF PURPOSE AND THE INTENT TO ACHIEVE THAT OBJECTIVE. 86 CONDUCTING A FINANCIAL TRANSACTION DEFINED 167. THE FIRST ELEMENT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT IS THAT THE DEFENDANT CONDUCTED A FINANCIAL TRANSACTION. 168. THE TERM “CONDUCTS” INCLUDES INITIATING, CONCLUDING, OR PARTICIPATING IN INITIATING OR CONCLUDING A TRANSACTION. 169. THE TERM “TRANSACTION” MEANS A PURCHASE, SALE, LOAN, PLEDGE, GIFT, TRANSFER, DELIVERY, OR OTHER DISPOSITION OF PROPERTY. WITH RESPECT TO A FINANCIAL INSTITUTION, THE TERM “TRANSACTION” MEANS THE DEPOSIT, WITHDRAWAL, TRANSFER BETWEEN ACCOUNTS, OR ANY OTHER PAYMENT, TRANSFER, OR DELIVERY BY, THROUGH, OR TO A FINANCIAL INSTITUTION BY WHATEVER MEANS EFFECTED. 170. THE TERM “FINANCIAL TRANSACTION” MEANS ANY “TRANSACTION,” AS I JUST EXPLAINED THAT TERM, THAT IN ANY WAY OR DEGREE AFFECTS INTERSTATE OR FOREIGN 87 COMMERCE AND INVOLVES THE MOVEMENT OF FUNDS BY WIRE OR OTHER MEANS, OR INVOLVES ONE OR MORE MONETARY INSTRUMENTS, OR INVOLVES THE TRANSFER OF TITLE TO ANY REAL PROPERTY, VEHICLE, VESSEL, OR AIRCRAFT; OR INVOLVES THE USE OF A FINANCIAL INSTITUTION THAT IS ENGAGED IN, OR THE ACTIVITIES OF WHICH AFFECT, INTERSTATE OR FOREIGN COMMERCE IN ANY WAY OR DEGREE. INTERSTATE COMMERCE DEFINED 171. THE TERM “INTERSTATE COMMERCE,” AS USED IN THESE INSTRUCTIONS, MEANS COMMERCE BETWEEN ANY COMBINATION OF STATES, TERRITORIES OR POSSESSIONS OF THE UNITED STATES, INCLUDING THE DISTRICT OF COLUMBIA. 172. I INSTRUCT YOU, AS A MATTER OF LAW, THAT THE RENTAL OF REAL ESTATE IS AN ACTIVITY WHICH AFFECTS INTERSTATE COMMERCE. 88 173. THE PROSECUTION IS NOT REQUIRED TO PROVE THAT A DEFENDANT’S TRANSACTIONS WITH A FINANCIAL INSTITUTION THEMSELVES AFFECTED INTERSTATE OR FOREIGN COMMERCE. THE PROSECUTION IS REQUIRED TO PROVE ONLY THAT THE FINANCIAL INSTITUTIONS OR BANKS THROUGH WHICH THE FINANCIAL TRANSACTIONS WERE CONDUCTED WERE ENGAGED IN OR HAD OTHER ACTIVITIES WHICH AFFECTED INTERSTATE OR FOREIGN COMMERCE IN ANY WAY OR DEGREE. 174. FURTHER, THE PROSECUTION IS NOT REQUIRED TO PROVE THAT THE DEFENDANT KNEW OF OR INTENDED THE EFFECT ON INTERSTATE COMMERCE, MERELY THAT SUCH AN EFFECT OCCURRED. PROCEEDS OF A SPECIFIED UNLAWFUL ACTIVITY DEFINED 175. THE TERM “PROCEEDS,” AS USED IN THESE INSTRUCTIONS, MEANS ANY PROPERTY, OR ANY INTEREST IN PROPERTY, THAT SOMEONE ACQUIRES OR RETAINS AS A 89 RESULT OF CRIMINAL ACTIVITY. PROCEEDS MAY BE DERIVED FROM AN ALREADY COMPLETED OFFENSE OR FROM A COMPLETED PHASE OF AN ONGOING OFFENSE. 176. THE PROSECUTION IS NOT REQUIRED TO PROVE THAT ALL OF THE FUNDS INVOLVED IN THE CHARGED TRANSACTIONS WERE THE PROCEEDS OF THE SPECIFIED UNLAWFUL ACTIVITY. A FINANCIAL TRANSACTION INVOLVES “PROCEEDS” OF A SPECIFIED UNLAWFUL ACTIVITY EVEN WHEN PROCEEDS OF A SPECIFIED UNLAWFUL ACTIVITY ARE COMMINGLED IN AN ACCOUNT WITH FUNDS OBTAINED FROM LEGITIMATE SOURCES. IT IS SUFFICIENT IF THE PROSECUTION PROVES BEYOND A REASONABLE DOUBT THAT AT LEAST PART OF THE FUNDS INVOLVED IN A TRANSACTION REPRESENTS SUCH PROCEEDS OF SPECIFIED UNLAWFUL ACTIVITY. 177. I INSTRUCT YOU, AS A MATTER OF LAW, THAT THE TERM “SPECIFIED UNLAWFUL ACTIVITY” INCLUDES A VIOLATION OF DISTRIBUTING OR CONSPIRING TO 90 DISTRIBUTE HEROIN AS CHARGED IN COUNTS ONE AND TWO IN THIS CASE. I HAVE PREVIOUSLY EXPLAINED THE ELEMENTS OF DISTRIBUTING OR CONSPIRING TO DISTRIBUTE HEROIN. KNOWLEDGE THAT PROPERTY REPRESENTS PROCEEDS OF SOME FORM OF UNLAWFUL ACTIVITY DEFINED 178. THE THIRD ELEMENT THAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT IS THAT IN CONDUCTING A FINANCIAL TRANSACTION THE DEFENDANT KNEW THAT THE PROPERTY INVOLVED IN THE FINANCIAL TRANSACTION REPRESENTED THE PROCEEDS OF SOME FORM OF UNLAWFUL ACTIVITY. TO SATISFY THIS ELEMENT, THE PROSECUTION MUST PROVE THAT THE DEFENDANT KNEW THE PROPERTY INVOLVED IN THE TRANSACTION REPRESENTED PROCEEDS FROM SOME FORM OF UNLAWFUL ACTIVITY THAT IS A FELONY OFFENSE UNDER STATE, FEDERAL, OR FOREIGN LAW. THE PROSECUTION IS NOT 91 REQUIRED TO PROVE THAT THE DEFENDANT KNEW WHAT THE UNLAWFUL ACTIVITY WAS. 179. IN THIS CASE, THE PROSECUTION CLAIMS THAT MR. MONTGOMERY KNEW THAT THE PROCEEDS WERE DERIVED FROM UNLAWFUL ACTIVITY WHICH CONSTITUTES A VIOLATION OF DISTRIBUTING OR CONSPIRING TO DISTRIBUTE HEROIN WHICH IS A FELONY UNDER FEDERAL LAW. INTENT TO PROMOTE, INTENT TO CONCEAL OR DISGUISE, DEFINED 180. THE FINAL ELEMENT THAT THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT IS THAT A DEFENDANT, IN CONDUCTING THE FINANCIAL TRANSACTIONS, INTENDED TO CONCEAL OR DISGUISE THE NATURE, THE SOURCE, THE OWNERSHIP, OR THE CONTROL OF THE PROCEEDS OF THE SPECIFIED UNLAWFUL ACTIVITY, THAT IS, DISTRIBUTING OR CONSPIRING TO DISTRIBUTE HEROIN. 92 181. WHETHER THE DEFENDANT KNEW THAT THE PURPOSE OF THE FINANCIAL TRANSACTION WAS TO CONCEAL OR DISGUISE THE NATURE, LOCATION, SOURCE, OWNERSHIP OR CONTROL OF THE PROCEEDS OF DISTRIBUTING OR CONSPIRING TO DISTRIBUTE HEROIN MAY BE ESTABLISHED BY PROOF OF THE DEFENDANT’S ACTUAL KNOWLEDGE; BY CIRCUMSTANTIAL EVIDENCE; OR BY THE DEFENDANT’S WILLFUL BLINDNESS (OR PURPOSEFUL IGNORANCE). IN OTHER WORDS, YOU ARE ENTITLED TO FIND FROM THE CIRCUMSTANCES SURROUNDING THE FINANCIAL TRANSACTIONS OR ATTEMPTED FINANCIAL TRANSACTIONS THE PURPOSE OF THAT ACTIVITY AND THE DEFENDANT’S KNOWLEDGE. 182. THE PROSECUTION NEED NOT PROVE THAT MR. MONTGOMERY HIMSELF HAD THE INTENT TO CONCEAL OR DISGUISE THE NATURE, LOCATION, SOURCE, OWNERSHIP OR CONTROL OF THE PROCEEDS OF UNLAWFUL ACTIVITY. IT IS 93 ENOUGH TO PROVE THAT HE KNEW SOMEONE ELSE HAD THAT PURPOSE. GENERAL CONSPIRACY INSTRUCTIONS WHICH APPLY TO THE CONSPIRACIES CHARGED IN COUNTS 1 AND 6 183. IN CONSIDERING THE EVIDENCE THAT WAS PRESENTED REGARDING THE MONEY LAUNDERING CONSPIRACY CHARGED IN COUNT 6 OF THE INDICTMENT, KEEP IN MIND THE GENERAL CONSPIRACY INSTRUCTIONS I PROVIDED TO YOU IN DISCUSSING THE LAW REGARDING THE HEROIN DISTRIBUTION CONSPIRACY CHARGED IN COUNT 1 OF THE INDICTMENT. THOSE GENERAL CONSPIRACY INSTRUCTIONS ALSO APPLY TO THE MONEY LAUNDERING CONSPIRACY CHARGED IN COUNT 6 OF THE INDICTMENT. COUNT 7 OF THE INDICTMENT – MR. MONTGOMERY 184. COUNT 7 OF THE INDICTMENT CHARGES PRICE MONTGOMERY WITH TAMPERING WITH A WITNESS BY KILLING A PERSON ON OR ABOUT AUGUST 22, 2014. 94 185. IN ORDER TO FIND THE DEFENDANT GUILTY OF THIS OFFENSE, YOU MUST FIND THAT THE GOVERNMENT PROVED EACH OF THE FOLLOWING FOUR ELEMENTS BEYOND A REASONABLE DOUBT: 186. FIRST: THAT MR. MONTGOMERY KILLED TINA CRAWFORD; 187. SECOND: THAT HE WAS MOTIVATED BY A DESIRE TO PREVENT THE COMMUNICATION BETWEEN TINA CRAWFORD AND LAW ENFORCEMENT AUTHORITIES CONCERNING THE COMMISSION OR POSSIBLE COMMISSION OF THE OFFENSE DESCRIBED IN COUNT TWO; 188. THIRD: THAT THE OFFENSE DESCRIBED IN COUNT TWO WAS ACTUALLY A FEDERAL OFFENSE; AND 189. FOURTH: THAT HE BELIEVED THAT THERE WAS A REASONABLE LIKELIHOOD THAT TINA CRAWFORD WOULD IN FACT MAKE A RELEVANT COMMUNICATION TO LAW ENFORCEMENT AUTHORITIES. 95 190. TO ESTABLISH A “REASONABLE LIKELIHOOD,” THERE MUST BE EVIDENCE – NOT MERELY ARGUMENT – OF THE WITNESS’S INTENTION TO COOPERATE WITH LAW ENFORCEMENT. THE GOVERNMENT DOES NOT HAVE TO PROVE THAT, AT THE TIME OF THE KILLING, THE WITNESS HAD ENGAGED IN ANY COMMUNICATION AT ALL WITH LAW ENFORCEMENT AUTHORITIES. NOR DOES THE GOVERNMENT HAVE TO PROVE THE PRECISE NATURE OF THE COMMUNICATION OR INTENDED COMMUNICATION. THE GOVERNMENT NEED ONLY SHOW THAT THE LIKELIHOOD OF COMMUNICATION TO A FEDERAL OFFICER WAS MORE THAN REMOTE, OUTLANDISH OR SIMPLY HYPOTHETICAL. 191. THE GOVERNMENT ALSO DOES NOT HAVE TO PROVE THAT A FEDERAL INVESTIGATION WAS IN PROGRESS AT THE TIME THE DEFENDANT KILLED TINA CRAWFORD. COUNT 8 OF THE INDICTMENT – MR. MONTGOMERY 192. PRICE MONTGOMERY IS CHARGED WITH USING AND DISCHARGING A FIREARM IN RELATION TO A CRIME OF 96 VIOLENCE RESULTING IN DEATH ON OR ABOUT AUGUST 22, 2014. 193. COUNT 8 OF THE INDICTMENT CHARGES PRICE MONTGOMERY WITH CARRYING, USING AND DISCHARGING A FIREARM DURING A CRIME OF VIOLENCE, SPECIFICALLY COUNT 7. I INSTRUCT YOU THAT THE OFFENSE ALLEGED IN COUNT 7 IS A CRIME OF VIOLENCE. 194. IN ORDER TO FIND PRICE MONTGOMERY GUILTY OF THE OFFENSE CHARGED IN COUNT 8 OF THE INDICTMENT, YOU MUST FIND THAT THE PROSECUTION PROVED EACH OF THE FOLLOWING FOUR ELEMENTS BEYOND A REASONABLE DOUBT. 195. FIRST: THAT PRICE MONTGOMERY COMMITTED THE CRIME OF TAMPERING WITH A WITNESS BY KILLING A PERSON AS CHARGED IN COUNT 7; 196. SECOND: THAT THE KILLING WAS A MURDER, THAT IS, IT WAS A WILLFUL, DELIBERATE, MALICIOUS AND PREMEDITATED KILLING; 97 197. THIRD: THAT DURING AND IN RELATION TO THE COMMISSION OF THAT CRIME, PRICE MONTGOMERY KNOWINGLY CARRIED, OR USED A FIREARM. THE PHRASE “CARRIES” A FIREARM MEANS HAVING A FIREARM, OR FIREARMS, AVAILABLE TO ASSIST OR AID IN THE COMMISSION OF THE CRIME OF TAMPERING WITH A WITNESS BY KILLING A PERSON. TO “USE” A FIREARM MEANS MORE THAN MERE POSSESSION OF A FIREARM BY A PERSON WHO COMMITS A CRIME; TO ESTABLISH USE, THE PROSECUTION MUST SHOW ACTIVE EMPLOYMENT OF THE FIREARM. THE GOVERNMENT ALLEGES IN THIS CASE THAT THE DEFENDANT USED THE FIREARM BY DISCHARGING IT. IF THE DEFENDANT DID NOT ACTIVELY EMPLOY IT, THE DEFENDANT DID NOT USE THE FIREARM; AND 198. FOURTH: THAT PRICE MONTGOMERY CARRIED OR USED THE FIREARM DURING AND IN RELATION TO THE CRIME OF TAMPERING WITH A WITNESS BY KILLING A PERSON. THE TERM “DURING AND IN RELATION TO” MEANS THAT THE 98 FIREARM MUST HAVE HAD SOME PURPOSE OR EFFECT WITH RESPECT TO TAMPERING WITH A WITNESS BY KILLING A PERSON. THE FIREARM MUST HAVE AT LEAST FACILITATED OR HAD THE POTENTIAL OF FACILITATING THE CRIME OF TAMPERING WITH A WITNESS BY KILLING A PERSON. 199. AS PREVIOUSLY DEFINED, THE TERM “FIREARM” MEANS ANY WEAPON WHICH WILL EXPEL, OR IS DESIGNED TO OR MAY READILY BE CONVERTED TO EXPEL, A PROJECTILE BY THE ACTION OF AN EXPLOSIVE. THE TERM INCLUDES THE FRAME OR RECEIVER OF ANY SUCH WEAPON. COUNT 9 OF THE INDICTMENT – MR. MONTGOMERY 200. PRICE MONTGOMERY HAS BEEN CHARGED AT COUNT 9 IN THE INDICTMENT WITH TAMPERING WITH A WITNESS BY ATTEMPTING TO KILL A PERSON. 201. IN ORDER TO FIND THE DEFENDANT GUILTY OF THIS OFFENSE, YOU MUST FIND THAT THE GOVERNMENT PROVED EACH OF THE FOLLOWING FOUR ELEMENTS BEYOND A REASONABLE DOUBT: 99 202. FIRST: THAT PRICE MONTGOMERY ATTEMPTED TO KILL PATSY CRAWFORD; 203. SECOND: THAT HE WAS MOTIVATED BY A DESIRE TO PREVENT THE COMMUNICATION BETWEEN PATSY CRAWFORD AND LAW ENFORCEMENT AUTHORITIES CONCERNING THE COMMISSION OR POSSIBLE COMMISSION OF THE OFFENSE DESCRIBED IN COUNT SEVEN; 204. THIRD: THAT THE OFFENSE DESCRIBED IN COUNT SEVEN IS ACTUALLY A FEDERAL OFFENSE; AND 205. FOURTH: THAT PRICE MONTGOMERY BELIEVED THAT THERE WAS A REASONABLE LIKELIHOOD THAT PATSY CRAWFORD WOULD IN FACT MAKE A RELEVANT COMMUNICATION TO LAW ENFORCEMENT AUTHORITIES. 206. TO ESTABLISH A “REASONABLE LIKELIHOOD,” THERE MUST BE EVIDENCE – NOT MERELY ARGUMENT – OF THE WITNESS’S INTENTION TO COOPERATE WITH LAW ENFORCEMENT. THE GOVERNMENT DOES NOT HAVE TO PROVE THAT, AT THE TIME OF THE KILLING, THE WITNESS 100 HAD ENGAGED IN ANY COMMUNICATION AT ALL WITH LAW ENFORCEMENT AUTHORITIES. NOR DOES THE GOVERNMENT HAVE TO PROVE THE PRECISE NATURE OF THE COMMUNICATION OR INTENDED COMMUNICATION. THE GOVERNMENT NEED ONLY SHOW THAT THE LIKELIHOOD OF COMMUNICATION TO A FEDERAL OFFICER WAS MORE THAN REMOTE, OUTLANDISH OR SIMPLY HYPOTHETICAL. 207. THE GOVERNMENT ALSO DOES NOT HAVE TO PROVE THAT A FEDERAL INVESTIGATION WAS IN PROGRESS AT THE TIME THAT THE DEFENDANT ATTEMPTED TO KILL PATSY CRAWFORD. COUNT 10 OF THE INDICTMENT – MR. MONTGOMERY 208. COUNT 10 OF THE INDICTMENT CHARGES PRICE MONTGOMERY WITH USING AND DISCHARGING A FIREARM IN RELATION TO A CRIME OF VIOLENCE ON OR ABOUT AUGUST 22, 2014. 209. COUNT 10 OF THE INDICTMENT CHARGES PRICE MONTGOMERY WITH CARRYING, USING AND DISCHARGING 101 A FIREARM DURING A CRIME OF VIOLENCE, SPECIFICALLY COUNT 9. I INSTRUCT YOU THAT THE OFFENSE ALLEGED IN COUNT 9 IS A CRIME OF VIOLENCE. 210. IN ORDER TO FIND PRICE MONTGOMERY GUILTY OF THE OFFENSE CHARGED IN COUNT 10 OF THE INDICTMENT, YOU MUST FIND THAT THE PROSECUTION PROVED EACH OF THE FOLLOWING THREE ELEMENTS BEYOND A REASONABLE DOUBT. 211. FIRST: THAT PRICE MONTGOMERY COMMITTED THE CRIME OF TAMPERING WITH A WITNESS BY ATTEMPTING TO KILL A PERSON AS CHARGED IN COUNT 9; 212. SECOND: THAT DURING AND IN RELATION TO THE COMMISSION OF THAT CRIME, PRICE MONTGOMERY KNOWINGLY CARRIED, OR USED A FIREARM. THE PHRASE “CARRIES” A FIREARM MEANS HAVING A FIREARM, OR FIREARMS, AVAILABLE TO ASSIST OR AID IN THE COMMISSION OF THE CRIME OF TAMPERING WITH A WITNESS BY KILLING A PERSON. TO “USE” A FIREARM MEANS MORE 102 THAN MERE POSSESSION OF A FIREARM BY A PERSON WHO COMMITS A CRIME; TO ESTABLISH USE, THE PROSECUTION MUST SHOW ACTIVE EMPLOYMENT OF THE FIREARM. THE GOVERNMENT ALLEGES IN THIS CASE THAT PRICE MONTGOMERY USED THE FIREARM BY DISCHARGING IT. IF THE DEFENDANT DID NOT ACTIVELY EMPLOY IT, THE DEFENDANT DID NOT USE THE FIREARM; AND 213. THIRD: THAT PRICE MONTGOMERY CARRIED OR USED THE FIREARM DURING AND IN RELATION TO THE CRIME OF TAMPERING WITH A WITNESS BY ATTEMPTING TO KILL A PERSON. DURING AND IN RELATION TO MEANS THAT THE FIREARM MUST HAVE HAD SOME PURPOSE OR EFFECT WITH RESPECT TO TAMPERING WITH A WITNESS BY ATTEMPTING TO KILL A PERSON. THE FIREARM MUST HAVE AT LEAST FACILITATED OR HAD THE POTENTIAL OF FACILITATING THE CRIME OF TAMPERING WITH A WITNESS BY ATTEMPTING TO KILL A PERSON. 103 CONSCIOUSNESS OF GUILT (FLIGHT, CONCEALMENT, USE OF AN ALIAS, ETC.) 214. THE GOVERNMENT PRESENTED EVIDENCE THAT, AFTER THE CRIMES CHARGED IN COUNTS 7-10 WERE COMMITTED, PRICE MONTGOMERY FLED WESTERN PENNSYLVANIA AND ASSUMED A DIFFERENT IDENTITY WHILE RESIDING ELSEWHERE. 215. IF YOU BELIEVE THAT DEFENDANT PRICE MONTGOMERY ENGAGED IN THAT CONDUCT, THEN YOU MAY CONSIDER THIS CONDUCT, ALONG WITH ALL THE OTHER EVIDENCE, IN DECIDING WHETHER THE GOVERNMENT HAS PROVED BEYOND A REASONABLE DOUBT THAT HE COMMITTED ANY OF THE CRIMES CHARGED. THIS CONDUCT MAY INDICATE THAT DEFENDANT PRICE MONTGOMERY THOUGHT HE WAS GUILTY OF THE CRIMES AND WAS TRYING TO AVOID PUNISHMENT. ON THE OTHER HAND, SOMETIMES AN INNOCENT PERSON MAY RELOCATE AND ASSUME A DIFFERENT IDENTITY FOR SOME OTHER 104 REASON. WHETHER OR NOT THIS EVIDENCE CAUSES YOU TO FIND THAT PRICE MONTGOMERY WAS CONSCIOUS OF GUILT OF THE CRIMES CHARGED, AND WHETHER THAT INDICATES THAT HE COMMITTED THE CRIMES CHARGED, IS ENTIRELY UP TO YOU AS THE SOLE JUDGES OF THE FACTS. AIDING AND ABETTING 216. COUNTS 3, 4, 6, 7, 8, 9 AND 10 INCLUDE CHARGES UNDER THE FEDERAL AIDING AND ABETTING STATUTE, WHICH IS FOUND AT SECTION 2 OF TITLE 18 OF THE UNITED STATES CODE. THE AIDING AND ABETTING STATUTE STATES AS FOLLOWS: (A) WHOEVER COMMITS AN OFFENSE AGAINST THE UNITED STATES, OR AIDS, ABETS, COUNSELS, COMMANDS, INDUCES OR PROCURES ITS COMMISSION, IS PUNISHABLE AS A PRINCIPAL. (B) WHOEVER WILLFULLY CAUSES AN ACT TO BE DONE WHICH IF DIRECTLY PERFORMED BY HIM OR 105 ANOTHER WOULD BE AN OFFENSE AGAINST THE UNITED STATES, IS PUNISHABLE AS A PRINCIPAL. 217. UNDER THIS STATUTE, IT IS NOT NECESSARY FOR THE GOVERNMENT TO SHOW THAT A DEFENDANT HIMSELF PHYSICALLY COMMITTED THE OFFENSE WITH WHICH HE IS CHARGED IN ORDER FOR YOU TO FIND HIM GUILTY. THIS IS BECAUSE, UNDER THE LAW, A PERSON WHO AIDS AND ABETS ANOTHER TO COMMIT AN OFFENSE IS JUST AS GUILTY OF THAT OFFENSE AS IF HE HAD COMMITTED IT HIMSELF. 218. IN ORDER TO FIND A DEFENDANT GUILTY OF AN OFFENSE BECAUSE HE AIDED AND ABETTED ANOTHER PERSON IN COMMITTING THAT OFFENSE, YOU MUST FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT EACH OF FOLLOWING FOUR (4) REQUIREMENTS: 219. FIRST: THAT SOME PERSON COMMITTED THE OFFENSE CHARGED BY COMMITTING EACH OF THE ELEMENTS OF THE OFFENSE CHARGED, AS I HAVE EXPLAINED THOSE ELEMENTS TO YOU IN THESE 106 INSTRUCTIONS. THAT PERSON NEED NOT HAVE BEEN CHARGED WITH OR FOUND GUILTY OF THE OFFENSE, HOWEVER, AS LONG AS YOU FIND THAT THE PROSECUTION PROVED BEYOND A REASONABLE DOUBT THAT THE PERSON COMMITTED THE OFFENSE; 220. SECOND: THAT THE DEFENDANT WHO IS CHARGED WITH AIDING AND ABETTING KNEW THAT THE OFFENSE CHARGED WAS GOING TO BE COMMITTED, OR WAS BEING COMMITTED BY THAT OTHER PERSON; 221. THIRD: THAT THE DEFENDANT KNOWINGLY DID SOME ACT FOR THE PURPOSE OF AIDING, ASSISTING, FACILITATING, OR ENCOURAGING THAT OTHER PERSON IN COMMITTING THE SPECIFIC OFFENSE CHARGED AND WITH THE INTENT THAT THE OTHER PERSON COMMIT THAT SPECIFIC OFFENSE; AND 222. FOURTH: THAT THE DEFENDANT PERFORMED AN ACT IN FURTHERANCE OF THE OFFENSE CHARGED. 107 223. IN DECIDING WHETHER THE DEFENDANT HAD THE REQUIRED KNOWLEDGE AND INTENT TO SATISFY THE THIRD REQUIREMENT FOR AIDING AND ABETTING, YOU MAY CONSIDER BOTH DIRECT AND CIRCUMSTANTIAL EVIDENCE INCLUDING THE DEFENDANT’S WORDS AND ACTIONS AND THE OTHER FACTS AND CIRCUMSTANCES. HOWEVER, EVIDENCE THAT THE DEFENDANT MERELY ASSOCIATED WITH PERSONS INVOLVED IN A CRIMINAL VENTURE OR WAS MERELY PRESENT OR WAS MERELY A KNOWING SPECTATOR DURING THE COMMISSION OF THE OFFENSE IS NOT ENOUGH FOR YOU TO FIND THE DEFENDANT GUILTY AS AN AIDER AND ABETTER. IF THE EVIDENCE SHOWS THAT A DEFENDANT KNEW THAT THE OFFENSE WAS BEING COMMITTED OR WAS ABOUT TO BE COMMITTED, BUT DOES NOT ALSO PROVE BEYOND A REASONABLE DOUBT THAT IT WAS THE DEFENDANT’S INTENT AND PURPOSE TO AID, ASSIST, ENCOURAGE, FACILITATE OR OTHERWISE ASSOCIATE HIMSELF WITH THE OFFENSE, YOU MAY NOT 108 FIND THE DEFENDANT GUILTY OF THE OFFENSES AS AN AIDER AND ABETTOR. THE PROSECUTION MUST PROVE BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IN SOME WAY PARTICIPATED IN THE OFFENSE COMMITTED BY THE OTHER PERSON AS SOMETHING THE DEFENDANT WISHED TO BRING ABOUT AND TO MAKE SUCCEED. 224. TO SHOW THAT THE DEFENDANT PERFORMED AN ACT IN FURTHERANCE OF THE OFFENSE CHARGED, TO SATISFY THE FOURTH REQUIREMENT, THE PROSECUTION NEEDS TO SHOW SOME AFFIRMATIVE PARTICIPATION BY THE DEFENDANT WHICH AT LEAST ENCOURAGED THE OTHER PERSON TO COMMIT THE OFFENSE. THAT IS, YOU MUST FIND THAT THE DEFENDANT’S ACT DID, IN SOME WAY, AID, ASSIST, FACILITATE, ENCOURAGE, THE OTHER PERSON TO COMMIT THE OFFENSE. THE DEFENDANT’S ACT NEED NOT FURTHER AID, ASSIST, FACILITATE, ENCOURAGE, EVERY PART OR PHASE OF THE OFFENSE CHARGED; IT IS ENOUGH IF THE DEFENDANT’S ACT FURTHER AIDED, ASSISTED, 109 FACILITATED, ENCOURAGED, ONLY ONE OR SOME PART OR PHASE OF THE OFFENSE. ALSO, THE DEFENDANT’S ACTS NEED NOT THEMSELVES BE AGAINST THE LAW. 225. THAT CONCLUDES MY INSTRUCTIONS EXPLAINING THE LAW REGARDING THE TESTIMONY AND OTHER EVIDENCE, AND THE OFFENSES CHARGED. NOW LET ME EXPLAIN SOME THINGS ABOUT YOUR DELIBERATIONS IN THE JURY ROOM, AND YOUR POSSIBLE VERDICTS. 226. THE FIRST THING YOU SHOULD DO IN THE JURY ROOM IS CHOOSE SOMEONE TO BE YOUR FOREPERSON. THIS PERSON WILL SPEAK FOR THE JURY HERE IN COURT. HE OR SHE WILL ALSO PRESIDE OVER YOUR DISCUSSIONS. HOWEVER, THE VIEWS AND VOTE OF THE FOREPERSON ARE ENTITLED TO NO GREATER WEIGHT THAN THOSE OF ANY OTHER JUROR. 227. I WANT TO REMIND YOU THAT YOUR VERDICT, WHETHER IT IS GUILTY OR NOT GUILTY, MUST BE UNANIMOUS. TO FIND PRICE MONTGOMERY AND JAMES 110 PERRIN GUILTY OF AN OFFENSE CHARGED, EVERY ONE OF YOU MUST AGREE THAT THE GOVERNMENT HAS OVERCOME THE PRESUMPTION OF INNOCENCE WITH EVIDENCE THAT PROVES EACH ELEMENT OF THAT OFFENSE BEYOND A REASONABLE DOUBT. TO FIND PRICE MONTGOMERY OR JAMES PERRIN NOT GUILTY, EVERY ONE OF YOU MUST AGREE THAT THE GOVERNMENT HAS FAILED TO CONVINCE YOU BEYOND A REASONABLE DOUBT AS TO ONE OR MORE ELEMENTS OF THE OFFENSE CHARGED. 228. TO ASSIST YOU IN THAT PROCESS, A VERDICT FORM HAS BEEN PREPARED FOR YOU TO RECORD YOUR VERDICT. IF YOU FIND UNANIMOUSLY THAT THE GOVERNMENT HAS PROVED BEYOND A REASONABLE DOUBT EACH OF THE ELEMENTS OF THE OFFENSE AS CHARGED IN THE INDICTMENT, THEN YOU SHOULD FIND PRICE MONTGOMERY AND/OR JAMES PERRIN GUILTY OF THAT OFFENSE AND YOUR FOREPERSON SHOULD NOTE "GUILTY" IN THE SPACE PROVIDED ON THE VERDICT FORM FOR THAT OFFENSE. 111 229. HOWEVER, IF YOU FIND UNANIMOUSLY THAT THE GOVERNMENT HAS NOT PROVED BEYOND A REASONABLE DOUBT EACH ELEMENT OF THE OFFENSE CHARGED IN THE INDICTMENT, THEN YOU MUST FIND PRICE MONTGOMERY AND/OR JAMES PERRIN NOT GUILTY OF THAT OFFENSE AND YOUR FOREPERSON SHOULD NOTE “NOT GUILTY” IN THE SPACE PROVIDED ON THE VERDICT FORM. YOU SHOULD REMEMBER THAT THE BURDEN IS ALWAYS ON THE GOVERNMENT TO PROVE, BEYOND A REASONABLE DOUBT, EACH AND EVERY ELEMENT OF AN OFFENSE CHARGED IN THE INDICTMENT. ONCE YOU HAVE REACHED YOUR UNANIMOUS VERDICT, YOUR CONSIDERATION OF THE CHARGES IN THIS CASE IS THEN CONCLUDED, AND YOU SHOULD SIGN AND DATE THE VERDICT FORM, AND SIGNAL THAT YOU HAVE REACHED A VERDICT. 230. REMEMBER, PRICE MONTGOMERY AND JAMES PERRIN ARE NOT ON TRIAL FOR ANY ACT OR CONDUCT NOT SPECIFICALLY CHARGED IN THE INDICTMENT. YOUR JOB IS 112 LIMITED TO DECIDING WHETHER THE GOVERNMENT HAS PROVED BEYOND A REASONABLE DOUBT THE CRIME CHARGED IN THE INDICTMENT. 231. IF PRICE MONTGOMERY OR JAMES PERRIN ARE FOUND GUILTY, IT WILL BE MY DUTY TO DECIDE WHAT THE PUNISHMENT WILL BE. YOU SHOULD NOT BE CONCERNED WITH PUNISHMENT OF PRICE MONTGOMERY OR JAMES PERRIN. IT SHOULD NOT ENTER YOUR CONSIDERATION OR DISCUSSION IN ANY WAY. 232. IN CONDUCTING YOUR DELIBERATIONS AND RETURNING YOUR VERDICT, THERE ARE CERTAIN RULES YOU MUST FOLLOW. 233. WHEN YOU RETIRE I SUGGEST THAT YOU CONDUCT YOUR DELIBERATIONS IN A BUSINESSLIKE MANNER IN ORDER TO DETERMINE THE ISSUES OF FACT IN THIS CASE USING THESE INSTRUCTIONS AS YOUR GUIDE. 113 234. YOU SHOULD ENGAGE IN A RATIONAL DISCUSSION OF THE EVIDENCE WHICH YOU HAVE HEARD AND SEEN FOR THE PURPOSE OF REACHING A UNANIMOUS VERDICT. 235. YOUR VERDICT MUST REPRESENT THE CONSIDERED JUDGMENT OF EACH JUROR. IN ORDER TO RETURN A VERDICT, IT IS NECESSARY THAT EACH JUROR AGREE TO IT. IN OTHER WORDS, YOUR VERDICT MUST BE UNANIMOUS AS TO EACH SPECIFIC CHARGE. 236. IF DURING YOUR DELIBERATIONS YOU DETERMINE THAT YOU HAVE THE NEED TO COMMUNICATE WITH ME, PLEASE REDUCE YOUR MESSAGE OR QUESTION TO WRITING SIGNED BY THE FOREPERSON, AND THEN FLIP THE SIGNALING BUTTON IN THE JURY ROOM AND GIVE THAT NOTE TO MR. BABIK, MY COURTROOM DEPUTY, WHO WILL BRING IT TO MY ATTENTION. I WILL THEN CONFER WITH THE ATTORNEYS REGARDING YOUR INQUIRY, AND I WILL THEN RESPOND TO YOU AS REASONABLY SOON AS POSSIBLE, 114 EITHER IN WRITING OR BY HAVING YOU RETURN TO THE COURTROOM SO THAT I CAN SPEAK TO YOU PERSONALLY. 237. I CAUTION YOU, HOWEVER, WITH REGARD TO ANY MESSAGE OR QUESTION YOU MIGHT SEND, THAT YOU SHOULD NEVER STATE, SPECIFY OR EVEN HINT AT ANY NUMERICAL VOTE DIVISION WHICH MAY EXIST AMONG YOU AT THE TIME. 238. AS I NOTED, THE COURT WILL PROVIDE WRITTEN COPIES OF THESE INSTRUCTIONS FOR USE DURING YOUR DELIBERATIONS. ALSO, COPIES OF PHOTOGRAPHIC, DOCUMENTARY, AND MOST PHYSICAL EXHIBITS WILL BE BROUGHT TO YOUR DELIBERATION ROOM. SOME PHYSICAL EXHIBITS WHICH ARE CLAIMED TO CONTAIN DRUG RESIDUE, OR FIREARMS, WILL BE HELD IN SAFEKEEPING. SHOULD YOU WISH TO EXAMINE ANY OF THEM, THAT IS NOT A PROBLEM. PLEASE JUST NOTIFY THE COURT, USING THE PROCESS THAT I JUST DESCRIBED FOR A JURY QUESTION. 115 239. IT IS YOUR DUTY AS JURORS TO CONSULT WITH ONE ANOTHER AND TO DELIBERATE IN AN EFFORT TO REACH AGREEMENT IF YOU CAN DO SO WITHOUT VIOLENCE TO INDIVIDUAL JUDGMENT. EACH OF YOU MUST DECIDE THE CASE FOR YOURSELF, BUT ONLY AFTER AN IMPARTIAL CONSIDERATION OF THE EVIDENCE IN THE CASE WITH YOUR FELLOW JURORS. 240. TALK WITH EACH OTHER, LISTEN CAREFULLY AND RESPECTFULLY TO EACH OTHER’S VIEWS, AND KEEP AN OPEN MIND AS YOU LISTEN TO WHAT YOUR FELLOW JURORS HAVE TO SAY. 241. IN THE COURSE OF YOUR DELIBERATIONS, DO NOT HESITATE TO RE-EXAMINE YOUR OWN VIEWS AND CHANGE YOUR OPINION IF YOU BECOME CONVINCED THAT IT IS ERRONEOUS. BUT DO NOT SURRENDER YOUR HONEST CONVICTION AS TO THE WEIGHT OR EFFECT OF THE EVIDENCE SOLELY BECAUSE OF THE OPINION OF YOUR 116 FELLOW JURORS, OR FOR THE MERE PURPOSE OF RETURNING A VERDICT. 242. NO ONE WILL BE ALLOWED TO HEAR YOUR DISCUSSIONS IN THE JURY ROOM, AND NO RECORD WILL BE MADE OF WHAT YOU SAY. YOU SHOULD ALL FEEL FREE TO SPEAK YOUR MINDS. 243. IF YOU ELECTED TO TAKE NOTES DURING THE TRIAL, YOUR NOTES SHOULD BE USED ONLY AS MEMORY AIDS. YOU SHOULD NOT GIVE YOUR NOTES GREATER WEIGHT THAN YOUR INDEPENDENT RECOLLECTION OF THE EVIDENCE. YOU SHOULD RELY UPON YOUR OWN INDEPENDENT RECOLLECTION OF THE EVIDENCE OR LACK OF EVIDENCE AND YOU SHOULD NOT BE UNDULY INFLUENCED BY THE NOTES OF OTHER JURORS. NOTES ARE NOT ENTITLED TO ANY MORE WEIGHT THAN THE MEMORY OR IMPRESSION OF EACH JUROR. 244. REMEMBER AT ALL TIMES, YOU ARE NOT PARTISANS. YOU ARE JUDGES -- JUDGES OF THE FACTS. 117 YOUR SOLE INTEREST IS TO SEEK THE TRUTH FROM THE EVIDENCE PRESENTED IN THE CASE. 245. YOUR VERDICT MUST BE BASED SOLELY ON THE EVIDENCE AND ON THE LAW WHICH I HAVE GIVEN TO YOU IN MY INSTRUCTIONS. I REPEAT, YOU CANNOT RETURN A VERDICT AS TO THE CHARGES IN THIS CASE, WHETHER GUILTY OR NOT GUILTY, UNLESS IT IS AGREED TO BY ALL OF YOU -- UNANIMOUSLY. 246. FINALLY, THE VERDICT SLIP FORM WE HAVE PREPARED IS SIMPLY THE WRITTEN NOTICE OF THE DECISION THAT YOU REACH IN THIS CASE. THERE IS SPACE FOR TWELVE SIGNATURES ON THE VERDICT SLIP AND ALL OF YOU MUST SIGN IT. THE QUESTIONS YOU WILL BE ASKED ARE AS FOLLOWS: 247. (READ FROM VERDICT FORM) 248. IT IS PROPER TO ADD THE CAUTION THAT NOTHING SAID IN THESE INSTRUCTIONS AND NOTHING IN THE VERDICT SLIP IS MEANT TO SUGGEST OR CONVEY IN ANY 118 WAY OR MANNER ANY INTIMATION AS TO WHAT VERDICT I THINK YOU SHOULD FIND. WHAT THE VERDICT SHALL BE IS YOUR SOLE AND EXCLUSIVE DUTY AND RESPONSIBILITY. 249. IF YOU HAVE NOT REACHED A VERDICT BY 5:00 P.M. TODAY, YOU MAY CONTINUE TO DELIBERATE LATER, IF ALL OF YOU UNANIMOUSLY AGREE TO DO SO AND YOUR FOREPERSON SO ADVISES ME IN WRITING. 250. IF YOU DO NOT UNANIMOUSLY AGREE TO CONTINUE DELIBERATIONS, THEN YOU MAY LEAVE AT 5:00 P.M. AND REPORT TO THE JURY ROOM TUESDAY AT 9:00 A.M. PLEASE ADVISE THE COURT VIA MR. BABIK OF HOW YOU WILL BE PROCEEDING. 251. YOU ARE INSTRUCTED THAT DURING DELIBERATIONS YOU ARE NOT PERMITTED TO ENGAGE IN ANY RESEARCH ON YOUR OWN. YOU SHOULD NOT SEEK INFORMATION REGARDING ANY ASPECT OF THIS TRIAL FROM ANY SOURCE OUTSIDE OF THE COURTROOM. IT WOULD BE IMPROPER FOR YOU TO DISCUSS ANY OF THE 119 ISSUES OF THIS CASE WITH ANY PERSON, INCLUDING MEMBERS OF YOUR FAMILY, UNTIL YOUR DELIBERATIONS HAVE CONCLUDED. 252. PLEASE REMEMBER MY INSTRUCTION TO NOT READ ABOUT THE CASE SHOULD THERE BE ANY ARTICLES IN THE NEWSPAPER AND NOT LISTEN TO ANY RADIO BROADCASTS OR TELEVISION BROADCASTS SHOULD THERE BE ANY CONCERNING THIS CASE. 253. YOU WILL NOTE FROM THE OATH TAKEN BY MY COURTROOM DEPUTY, MR. BABIK, AND OTHER MEMBERS OF MY STAFF THAT THEY TOO, AS WELL AS ALL OTHERS, ARE FORBIDDEN TO COMMUNICATE IN ANY WAY OR MANNER WITH ANY MEMBER OF THE JURY ON ANY SUBJECT TOUCHING THE MERITS OF THE CASE. 254. DURING YOUR DELIBERATIONS, YOU MUST CONTINUE TO OBSERVE ALL THE RESTRICTIONS I HAVE INSTRUCTED YOU ON THROUGHOUT THE TRIAL. DO NOT SPEAK AT ALL WITH ANY OF THE PARTIES, THE WITNESSES, 120 OR THE ATTORNEYS. DO NOT PERMIT ANYONE TO DISCUSS THE CASE WITH YOU. DO NOT EVEN REMAIN IN THE PRESENCE OF ANYONE DISCUSSING THE CASE. IF ANYONE APPROACHES YOU AND TRIES TO TALK TO YOU ABOUT THE CASE, PLEASE REPORT THAT TO ME, THROUGH MY COURTROOM DEPUTY, IMMEDIATELY. 255. DO NOT WATCH OR LISTEN TO ANY NEWS REPORTS CONCERNING THIS TRIAL ON TELEVISION OR RADIO AND DO NOT READ ANY NEWS ACCOUNTS OF THIS TRIAL IN A NEWSPAPER OR ON THE INTERNET. DO NOT USE THE INTERNET TO SEARCH FOR INFORMATION ABOUT THE PARTIES, WITNESSES, LAWYERS, OR ANYTHING ELSE ASSOCIATED WITH THE TRIAL. DO NOT VISIT THE SCENE OF THE ALLEGED OFFENSE OR CONDUCT ANY KIND OF INVESTIGATION OF YOUR OWN. THE ONLY INFORMATION YOU ARE ALLOWED TO CONSIDER IN DECIDING THIS CASE IS WHAT YOU LEARNED IN THIS COURTROOM DURING THE TRIAL. 121 256. FINALLY, I ADVISE YOU THAT DEPENDING ON THE VERDICT YOU REACH, THERE MAY BE A BRIEF ADDITIONAL PROCEEDING AFTER YOU HAVE RETURNED YOUR VERDICT. 122

=== Sample Criminal Verdict Form ===

IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF PENNSYLVANIA UNITED STATES OF AMERICA v. PRICE MONTGOMERY JAMES PERRIN 2:14-cr-00205 Judge Mark R. Hornak VERDICT FORM This verdict form has been prepared for the jury to use to record its unanimous verdict. Take this form with you to the jury room. When you have reached your unanimous verdict as to each and every charge as listed below, the foreperson should record the verdict on this form, date it and sign it, signal my courtroom deputy and give the form to my courtroom deputy in the envelope provided. 1. (a) Count One as to PRICE MONTGOMERY (Conspiracy from in and around April, 2013 to in and around June, 2014 to distribute and possess with intent to distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin): _______ Not Guilty _______ Guilty (b) Count One as to JAMES PERRIN (Conspiracy from in and around April, 2013 to in and around June, 2014 to distribute and possess with intent to distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin): _______ Not Guilty _______ Guilty 2. (a) Count Two as to PRICE MONTGOMERY (Possession with intent to distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin on or about June 8, 2014): _______ Not Guilty _______ Guilty (b) Count Two as to JAMES PERRIN (Possession with intent to distribute 1 kilogram or more of a mixture and substance containing a detectable amount of heroin on or about June 8, 2014): _______ Not Guilty _______ Guilty 3. Count Three as to JAMES PERRIN (Possession of a firearm by a convicted felon on or about June 8, 2014): _______ Not Guilty _______ Guilty 4. Count Four as to PRICE MONTGOMERY (Possession of a firearm by a convicted felon on or about June 8, 2014): _______ Not Guilty _______ Guilty 5. (a) Count Five as to PRICE MONTGOMERY (Possession of a firearm in furtherance of a drug trafficking crime on or about June 8, 2014): _______ Not Guilty _______ Guilty 2 (b) Count Five as to JAMES PERRIN (Possession of a firearm in furtherance of a drug trafficking crime on or about June 8, 2014): _______ Not Guilty _______ Guilty 6. Count Six as to PRICE MONTGOMERY (Conspiracy to launder monetary instruments from in and around March 2012 to on or about June 1, 2014): _______ Not Guilty _______ Guilty 7. Count Seven as to PRICE MONTGOMERY (Tampering with a witness by killing a person on or about August 22, 2014): _______ Not Guilty _______ Guilty 8. Count Eight as to PRICE MONTGOMERY (Using and discharging a firearm in relation to a crime of violence resulting in death on or about August 22, 2014): _______ Not Guilty _______ Guilty 9. Count Nine as to PRICE MONTGOMERY (Tampering with a witness by attempting to kill a person on or about August 22, 2014): _______ Not Guilty _______ Guilty 10. Count Ten as to PRICE MONTGOMERY (Using and discharging a firearm in relation to a crime of violence on or about August 22, 2014): _______ Not Guilty _______ Guilty 3 SO SAID BY ALL THIS IS OUR UNANIMOUS VERDICT, THIS _______ day of November, 2018. JURY FOREPERSON: _________________________ JURORS: _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ _________________________ 4